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EXHIBIT 4.2
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 TWO L.L.C., a Delaware limited liability
company ("CC Two") and SHOPPERS WORLD COMMUNITY CENTER, L.P., a Delaware limited
partnership ("Shoppers World"; CC Two and Shoppers World being hereafter
collectively referred to as "Borrower"), each having its principal place of
business 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 ("Lender") having an address at
Three World Financial Center, 200 Vesey Street, New York, New York 10285.
RECITALS
A. Under is the current owner and holder of those certain notes
described on Schedule I attached hereto and made a part hereto (collectively,
the "Initial Notes").
B. Borrower and Lender have agreed to modify and restate the terms and
extend the term of the Initial Notes in accordance with the terms set forth
below.
C. The Initial Notes and the debt evidenced thereby are hereby combined
and coordinated to constitute one joint indebtedness in the principal sum of
$126,750,000.00, together with interest thereon as hereinafter provided (the
Initial Notes, as so combined and coordinated and as modified and amended
pursuant to the provisions of this Amended and Restated Promissory Note being
hereinafter collectively referred to as the "Note").
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 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 Notes, 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 Notes are hereby supplemented, amended and restated in their entirety to
read as follows:
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PROMISSORY NOTE
$126,750,000.00 New York, New York
As of May 15, 1997
FOR VALUE RECEIVED COMMUNITY CENTERS TWO L.L.C., a Delaware
limited liability company ("CC Two") and SHOPPERS WORLD COMMUNITY CENTER, L.P.,
a Delaware limited partnership, as makers ("Shoppers World"; CC Two and Shoppers
World being hereafter collectively referred to as "Borrower"), each having its
principal place of business at The Heritage, 34555 Chagrin Boulevard, Moreland
Hills, Ohio 44022, as maker ("Borrower"), hereby unconditionally promises to pay
to the order of LEHMAN BROTHERS HOLDINGS INC., D/B/A LEHMAN CAPITAL, A DIVISION
OF LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, having an address at
Three World Financial Center, 200 Vesey Street, New York, New York 10285, as
payee ("Lender"), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of ONE HUNDRED TWENTY-SIX MILLION
SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($126,750,000.00) 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
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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), (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
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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 Lender 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%.
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 1/1 6 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
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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 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
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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 that certain Amended and Restated Deed of Trust and Security Agreement
dated as of the date hereof given by CC Two to (or for the benefit of) Lender
covering the fee estate of CC Two in certain premises located in Jackson County,
Missouri, that certain Amended and Restated Deed to Secure Debt and Security
Agreement dated as of the date hereof given by CC Two and Community Centers One
L.L.C., a Delaware limited liability company, to Lender covering the fee estate
in certain premises located in Fulton County, Georgia and Cobb County, Georgia,
that certain Amended and Restated Mortgage and Security Agreement dated as of
the date hereof given by Shoppers World to Lender covering the fee estate of
Shoppers World in certain premises located in Middlesex County, Massachusetts,
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 Collier 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 Borrower" shall mean
Community Centers One L.L.C., a
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Delaware limited liability company. 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
Borrower, the Related Borrower, 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 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
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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 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 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 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
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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 Lender 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 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.
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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 Under created by this Note, the Security
Instruments and the Other Security Documents; provided, however, that any
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 I 1. 10 of the Security Instruments, sue 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 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
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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 4 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 Under 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 secure all of the indebtedness owing to Lender in
accordance with this Note, the Security Instruments and the Other Security
Documents.
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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 Dewey Ballantine, with offices on the date hereof at 1301 Avenue of
the Americas, New York, New York, 10019-6092, 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 or
proceeding brought in any such court has been brought in an inconvenient forum.
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(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: Shoppers World Community Center, L.P.
Community Centers Two L.L.C.
The Heritage
34555 Chagrin Boulevard
Moreland Hills, Ohio 44022
Attention: Joan V. Allgood, Esq.
Facsimile No.: (216) 247-6113
With a copy to: Shoppers World Community Center, L.P.
Community Centers Two L.L.C.
c/o DRA Advisors, Inc.
1180 Avenue of the Americas
New York, New York 10036
Attention: David Luski
Facsimile No.: (212) 764-3571
Baker & Hostetler
3200 National City Center
1900 East 9th Street
Cleveland, Ohio 44114-3485
Attention: Albert T. Adams, Esq.
Facsimile No.: (216) 696-0740
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Dewey Ballantine
1301 Avenue of the Americas
New York, New York
Attention: Sanford W. Morehouse, Esq.
Facsimile No.: (212) 259-6333
If to Lender: Lehman Brothers Holdings Inc. d/b/a
Lehman Capital, a Division of
Lehman Brothers Holdings Inc.
Three World Financial Center
200 Vesey Street
New York, New York 10285
Attention: Shereen Jones
Facsimile No.: (212) 526-3746
and to: Lehman Brothers Holdings Inc., d/b/a
Lehman Capital, a Division of
Lehman Brothers Holdings Inc.
Three World Financial Center
200 Vesey Street
New York, New York 10285
Attention: Scott Kimmel and Annette
Nazareth
Facsimile No.: (212) 526-3721
With a copy to: Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
Attention: Mitchell G. Williams, Esq.
Facsimile No.: (212) 912-7751
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.
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(b) Wherever pursuant to this Note it is provided that
Borrower pay any costs and expenses, such costs and expenses shall 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 Under hereby confirm the legal operation and
effect of the Initial Notes so that the Initial Notes, 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 Notes, 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 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
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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
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
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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:________________________________
David Luski
Vice President
By: DD Retail Partners III, L.P., a
Delaware limited partnership, a
limited partner
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By: Master Realty Inc., a Delaware
corporation, its sole general
partner
By:___________________________
David Luski
Vice President
By: DD Retail Partners IV, 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
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LEHMAN BROTHERS HOLDINGS INC., D/B/A
LEHMAN CAPITAL, A DIVISION OF LEHMAN
BROTHERS HOLDINGS, INC., a Delaware
corporation
By:_____________________________________
Name:
Title:
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SCHEDULE 1
(Description of Initial Notes)
Promissory Notes dated as of March 22, 1996 made by Community Centers
Two L.L.C., and Shoppers World Community Center, L.P.:
(a) made payable to PNC Bank, National Association in the
original principal amount of $20,500,000.00;
(b) made payable to Sumitomo Bank, Ltd., Chicago Branch, in
the original principal amount of $14,000,000.00;
(c) made payable to Dresdner Bank Aktiengesellschaft, New
York Branch, in the original principal amount of
$18,500,000.00;
(d) made payable to Mellon Bank, N.A. in the original
principal amount of $18,500,000.00;
(e) made payable to Commerzbank Aktiengesellschaft, New
York Branch, in the original principal amount of
$18,500,000.00;
(f) made payable to Union Bank of Switzerland in the
original principal amount of $50,000,000.00.
(The above referenced Promissory Notes replaced that certain Promissory Note
dated November 17, 1995 made by Community Centers Two L.L.C. and Shoppers World
Community Center, L.P., made payable to Union Bank of Switzerland, New York
Branch, in the original principal amount of $140,000,000.00.)
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SCHEDULE 2
(Description of Related Security Instruments)
1. Amended and Restated Deed of Trust, Security Agreement, Fixture
Filing and Assignment of Rents dated the date hereof by Community Centers One
L.L.C., as grantor, to Chicago Title Company, as trustee, and Lehman Brothers
Holdings Inc., D/B/A Lehman Capital, a Division of Lehman Brothers Holdings
Inc., as beneficiary, in the principal amount of $322,500,000.00, encumbering
the property known as Carmel Mountain Plaza, San Diego, California, to be
recorded in the Recorder's File of San Diego County, California;
2. 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 Lehman Brothers Holdings
Inc., D/B/A Lehman Capital, a Division of Lehman 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;
3. Amended and Restated Mortgage and Security Agreement dated the date
hereof by Community Centers One L.L.C., as mortgagor, to Lehman Brothers
Holdings Inc., D/B/A Lehman Capital, a Division of Lehman 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 Collier County, Florida;
4. Amended and Restated Mortgage and Security Agreement dated the date
hereof by Community Centers One L.L.C., as mortgagor, to Lehman Brothers
Holdings Inc., D/B/A Lehman Capital, a Division of Lehman 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 Cook County, Illinois;
5. 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 Lehman Brothers Holdings Inc., D/B/A Lehman
Capital, a Division of Lehman 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
6. 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 Lehman Brothers Holdings Inc., D/B/A Lehman
Capital, a
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Division of Lehman 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 One L.L.C. and Lehman Brothers Holdings
Inc., D/B/A Lehman Capital, a Division of Lehman Brothers Holdings Inc., in the
principal amount of $153,000,000.00.
2. Amended and Restated Promissory Note dated the date hereof,
by and between Community Centers One L.L.C. and Lehman Brothers Holdings Inc.,
D/B/A Lehman Capital, a Division of Lehman Brothers Holdings Inc., in the
principal amount of $42,750,000.00.