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Loan No.: 502858289
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Oakview
Plaza
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PROMISSORY
NOTE
$27,500,000.00
as of December 20, 2006
FOR VALUE RECEIVED, the undersigned, LVP OAKVIEW
STRIP CENTER LLC, a Delaware limited liability company (
Borrower ”), having an address c/o The Lightstone
Group, 326 Third Street, Lakewood, New Jersey 08701, jointly and
severally promises to pay to the order of WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (together with its
successors and assigns, “ Lender ”), at the
office of Lender at Commercial Real Estate Services, 8739 Research
Drive URP - 4, NC 1075, Charlotte, North Carolina 28262, or at such
other place as Lender may designate to Borrower in writing from
time to time, the principal sum of TWENTY-SEVEN MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($27,500,000.00), together with
interest on so much thereof as is from time to time outstanding and
unpaid, from the date of the advance of the principal evidenced
hereby, at the rate of five and forty-nine hundredths percent
(5.49%) (the “ Note Rate ”), together with all
other amounts due hereunder or under the other Loan Documents (as
defined herein), in lawful money of the United States of America,
which shall at the time of payment be legal tender in payment of
all debts and dues, public and private.
ARTICLE
I
TERMS AND
CONDITIONS
Section 1.1 Computation of Interest . Interest shall be computed hereunder based on
a 360-day year and based on the actual number of days elapsed for
any period in which interest is being calculated, including,
without limitation, the Interest Only Period (hereinafter defined),
as more particularly set forth on Schedule A attached hereto and
incorporated herein by reference. Interest shall accrue from the
date on which funds are advanced hereunder (regardless of the time
of day) through and including the day on which funds are credited
pursuant to Section 1.2 hereof.
Section 1.2 Payment of Principal and Interest
. Payments in federal funds
immediately available at the place designated for payment received
by Lender prior to 2:00 p.m. eastern time on a day on which Lender
is open for business at said place of payment shall be credited
prior to close of business, while other payments, at the option of
Lender, may not be credited until immediately available to Lender
in federal funds at the place designated for payment prior to 2:00
p.m. eastern time on the next day on which Lender is open for
business. A payment in interest only, based on the payments set
forth on Schedule A annexed hereto, shall be made beginning on
February 11, 2007 (the "First Payment Date"), and continuing on the
eleventh day of each and every calendar month thereafter (each, an
"Interest Only Payment Date") through and including January 11,
2012 (each, an "Interest Only Payment") (such period being referred
to herein as the "Interest Only Period"). Commencing on February
11, 2012 and continuing thereafter on the eleventh day of each and
every calendar month thereafter through and including December 11,
2016 (each, together with each Interest Only Payment Date is
hereinafter collectively a "Payment Date"), principal and interest
shall be payable in equal consecutive monthly installments of
$155,969.48 each. On January 11, 2017 (the "Maturity Date"), the
entire outstanding principal balance hereof, together with all
accrued but unpaid interest thereon, shall be due and payable in
full.
Section 1.3 Application of Payments . So long as no Event of Default (as hereinafter
defined) exists hereunder or under any other Loan Document (as
hereinafter defined), each such monthly installment shall be
applied, first, to any amounts hereafter advanced by Lender
hereunder or under any other Loan Document, second, to any late
fees and other amounts payable to Lender, third, to the payment of
accrued interest and last to reduction of principal.
Section 1.4 Payment of “Short
Interest” . If the
advance of the principal amount evidenced by this Note is made on a
date other than a Payment Date, Borrower shall pay to Lender
contemporaneously with the execution hereof interest at the Note
Rate for a period from the date hereof through and including the
tenth (10 th ) day of either (x) this month, in the
event that the date hereof is on or prior to the 11th of the month,
and (y) the immediately succeeding month, in the event that the
date hereof is after the 11 th of the month.
Section 1.5 Prepayment; Defeasance .
(a) This Note may not be prepaid, in whole or in
part (except as otherwise specifically provided herein), at any
time prior to the Payment Date occurring two (2) Payment Dates
immediately prior to the Maturity Date (the “ Lockout
Expiration Date ”). In the event that Borrower wishes to
have the Property (as defined in the Security Instrument) released
from the lien of the Security Instrument (as hereinafter defined)
prior to the Lockout Expiration Date, Borrower’s sole option
shall be a Defeasance (as hereinafter defined) upon satisfaction of
the terms and conditions set forth in Section 1.5(d) hereof.
Notwithstanding anything contained in this Note or any of the other
Loan Documents to the contrary, this Note may be prepaid in whole
but not in part without premium or penalty on any Payment Date
(subject to the proviso below) occurring from and after the Lockout
Expiration Date provided (i) written notice of such prepayment is
received by Lender not more than ninety (90) days and not less than
thirty (30) days prior to the date of such prepayment, and (ii)
such prepayment is accompanied by all interest accrued hereunder
through the date of such prepayment and all other sums due
hereunder or under the other Loan Documents; provided, however,
that if such prepayment is received on a day that is not a Payment
Date, Borrower shall pay interest on the outstanding principal
balance hereof immediately preceding such prepayment at the Note
Rate for a period from the date of such payment through and
including the tenth (10th) day of either (x) the month in which the
prepayment occurs if such payment is made prior to the 11th day of
such month, and (y) the immediately succeeding month in which the
prepayment occurs if such payment is made after the 11th day of
such month. If, upon any such permitted prepayment on any Payment
Date occurring on or after the Lockout Expiration Date, the
aforesaid prior written notice has not been timely received by
Lender, there shall be due a prepayment fee equal to the lesser of
(i) thirty (30) days’ interest computed at the Note Rate on
the outstanding principal balance of this Note so prepaid and (ii)
interest computed at the Note Rate on the outstanding principal
balance of this Note so prepaid that would have been payable for
the period from, and including, the date of prepayment through the
Maturity Date, as though such prepayment had not
occurred.
(b) If, prior to the Lockout Expiration Date, the
indebtedness evidenced by this Note shall have been declared due
and payable by Lender pursuant to Article II hereof or the
provisions of any other Loan Document due to an Event of Default by
Borrower, then, in addition to the indebtedness evidenced by this
Note being immediately due and payable, there shall also then be
immediately due and payable a prepayment fee in an amount equal to
the Yield Maintenance Premium (as hereinafter defined) based on the
entire indebtedness on the date of such acceleration. In addition
to the amounts described in the preceding sentence, in the event of
any such acceleration or tender of payment of such indebtedness
occurs or is made on or prior to the first (1st) anniversary of the
date of this Note, there shall also then be immediately due and
payable an additional prepayment fee of three percent (3%) of the
principal balance of this Note. The term “ Yield
Maintenance Premium ” shall mean an amount equal to the
greater of (A) two percent (2.0%) of the principal amount being
prepaid, and (B) the present value of a series of payments each
equal to the Payment Differential (as hereinafter defined) and
payable on each Payment Date over the remaining original term of
this Note and on the Maturity Date, discounted at the Reinvestment
Yield (as hereinafter defined) for the number of months remaining
as of the date of such prepayment to each such Payment Date and the
Maturity Date. The term “ Payment Differential ”
shall mean an amount equal to (i) the Note Rate less the
Reinvestment Yield, divided by (ii) twelve (12) and multiplied by
(iii) the principal sum outstanding under this Note after
application of the constant monthly payment due under this Note on
the date of such prepayment, provided that the Payment Differential
shall in no event be less than zero. The term “
Reinvestment Yield ” shall mean an amount equal to the
lesser of (i) the yield on the U.S. Treasury issue (primary issue)
with a maturity date closest to the Maturity Date, or (ii) the
yield on the U.S. Treasury issue (primary issue) with a term equal
to the remaining average life of the indebtedness evidenced by this
Note, with each 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 such prepayment (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. In the event that any prepayment
fee is due hereunder, Lender shall deliver to Borrower a statement
setting forth the amount and determination of the prepayment fee,
and, provided that Lender shall have in good faith applied the
formula described above, Borrower shall not have the right to
challenge the calculation or the method of calculation set forth in
any such statement in the absence of manifest error, which
calculation may be made by Lender on any day during the fifteen
(15) day period preceding the date of such prepayment. Lender shall
not be obligated or required to have actually reinvested the
prepaid principal balance at the Reinvestment Yield or otherwise as
a condition to receiving the prepayment fee.
(c) Partial prepayments of this Note shall not be
permitted, except for partial prepayments resulting from
Lender’s election to apply insurance or condemnation proceeds
to reduce the outstanding principal balance of this Note as
provided in the Security Instrument, in which event no prepayment
fee or premium shall be due unless, at the time of either
Lender’s receipt of such proceeds or the application of such
proceeds to the outstanding principal balance of this Note, an
Event of Default exists, which Event of Default is unrelated to the
applicable casualty or condemnation, in which event the applicable
prepayment fee or premium shall be due and payable based upon the
amount of the prepayment. No notice of prepayment shall be required
under the circumstances specified in the preceding sentence. No
principal amount repaid may be reborrowed. Any such partial
prepayments of principal shall be applied to the unpaid principal
balance evidenced hereby but such application shall not reduce the
amount of the fixed monthly installments required to be paid
pursuant to Section 1.2 above. Except as otherwise expressly
provided in this Section, the prepayment fees provided above shall
be due, to the extent permitted by applicable law, under any and
all circumstances where all or any portion of this Note is paid
prior to the Maturity Date, whether such prepayment is voluntary or
involuntary, including, without limitation, if such prepayment
results from Lender’s exercise of its rights upon the
occurrence of an Event of Default and acceleration of the Maturity
Date of this Note (irrespective of whether foreclosure proceedings
have been commenced), and shall be in addition to any other sums
due hereunder or under any of the other Loan Documents. No tender
of a prepayment of this Note with respect to which a prepayment fee
is due shall be effective unless such prepayment is accompanied by
the applicable prepayment fee.
(d) i) On any Payment Date on or after the earlier
to occur of (x) three (3) years following the first Payment Date
hereunder, and (y) the day immediately following the date which is
two (2) years after the “startup day,” within the
meaning of Section 860G(a) (9) of the Internal Revenue Code of
1986, as amended from time to time or any successor statute (the
“ Code ”), of a “real estate mortgage
investment conduit,” within the meaning of Section 860D of
the Code (a “ REMIC Trust ”), that holds this
Note, and provided no Event of Default has occurred and is
continuing hereunder or under any of the other Loan Documents, at
Borrower’s option, Lender shall cause the release of the
Property from the lien of the Security Instrument and the other
Loan Documents (a “ Defeasance ”) upon the
satisfaction of the following conditions:
(A) Borrower shall give not more than ninety (90)
days’ or less than thirty (30) days’ prior written
notice to Lender specifying the date Borrower intends for the
Defeasance to be consummated (the “ Release Date
”), which date shall be a Payment Date.
(B) All accrued and unpaid interest and all other
sums due under this Note and under the other Loan Documents up to
and including the Release Date shall be paid in full on or prior to
the Release Date.
(C) Borrower shall deliver to Lender on or prior to
the Release Date:
(1) a sum of money in immediately available funds
(the “ Defeasance Deposit ”) which shall be
sufficient to enable Lender to purchase, through means and sources
customarily employed and available to Lender, or at the election of
Borrower to enable a third party defeasance company selected by
Borrower and reasonably acceptable to Lender to purchase on behalf
of Lender, for the account of Borrower, (x) direct, non-callable,
fixed rate obligations of the United States of America or (y)
non-callable, fixed rate obligations, other than U.S. Treasury
Obligations, that are “government securities” within
the meaning of Section 2(a)(16) of the Investment Company Act of
1940, as amended, that provide for payments prior, but as close as
possible, to all successive monthly Payment Dates occurring after
the Release Date and to the Lockout Expiration Date, with each such
payment being equal to or greater than the amount of the
corresponding installment of principal and/or interest required to
be paid under this Note (including, but not limited to, the
scheduled outstanding principal balance of the Loan due on the
Maturity Date based upon payments of principal and interest through
the Lockout Expiration Date) for the balance of the term hereof
(the “ Defeasance Collateral ”), each of which
shall be duly endorsed by the holder thereof as directed by Lender
or accompanied by a written instrument of transfer in form and
substance satisfactory to Lender in its sole discretion (including,
without limitation, such instruments as may be required by the
depository institution holding such securities or 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 D
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