EXHIBIT 10.45
PROMISSORY NOTE
LOAN TERMS TABLE
LENDER: KeyBank National Association, a national banking association,
its successors and assigns
LOAN NO.: 10017019
LENDER'S ADDRESS: 911 Main Street, Suite #1500, Kansas City, Missouri 64105
LENDER'S FACSIMILE NO.: (816) 221-8848
BORROWER: Ramco/Coral Creek, LLC, a Michigan limited liability company
BORROWER'S ADDRESS: c/o Ramco-Gershenson Properties Trust, 27600 Northwestern
Highway, Suite 200, Southfield, Michigan 48034
BORROWER'S FACSIMILE NO.: (248) 350-9925
BORROWER'S TAX IDENTIFICATION NUMBER: 75-3060305
PROPERTY: Real property located at N. State Route 7 & Johnson Road, Pompano
Beach, Florida 33073 in Broward County, Florida and certain personal
property described in the Security Instrument
NOTE DATE: June __, 2002
ORIGINAL PRINCIPAL AMOUNT: $10,272,000.00
ANTICIPATED REPAYMENT DATE: July 1, 2012
MATURITY DATE: July 1, 2032
INTEREST RATE: See Section 25.1
INITIAL INTEREST PAYMENT PER DIEM: $1,934.56
MONTHLY PAYMENT: $66,828.97
MONTHLY PAYMENT DATE: August 1, 2002 and on the first day of each successive
month thereafter
FINANCIAL STATEMENT REPORTING DEPOSIT: $428.00
1. LOAN AMOUNT AND RATE. FOR VALUE RECEIVED. Borrower promises to pay
to the order of Lender, the Original Principal Amount (or so much thereof as is
outstanding from time to time, which is referred to herein as the "OUTSTANDING
PRINCIPAL BALANCE" or "OPB"), with interest on the unpaid OPB from the date of
disbursement of the Loan (as hereinafter defined) evidenced by this Promissory
Note ("NOTE") at the Interest Rate. Interest shall be calculated based on the
daily rate which is produced assuming a three hundred sixty (360) day year
multiplied by the actual number of days elapsed. The loan evidenced by this
Note will sometimes hereinafter be called the "LOAN". The above Loan Terms Table
(hereinafter referred to as the "TABLE") is a part of the Note and all terms
used in this Note that are defined in the Table shall have the meanings set
forth herein.
2. PRINCIPAL AND INTEREST PAYMENTS. Payments of principal and interest
shall be made as follows:
(a) An interest payment on the date of disbursement of the Loan
proceeds in an amount calculated by multiplying the Initial Interest Payment Per
Diem by the number of days from (and including) the date of the disbursement of
the Loan proceeds through the last day of the calender month in which the
disbursement was made;
(b) A Monthly Payment on each Monthly Payment Date until the Maturity
Date, each of such payments to be applied: (i) to the payment of interest
computed at the Interest Rate; and (ii) the balance applied toward the reduction
of the principal balance of the Loan; and
(c) If not sooner paid, the balance of the principal amount of the
Loan, all unpaid interest thereon, and all other amounts owed to Lender pursuant
to this Note or any other Loan Document (as hereinafter defined) or otherwise in
connection with the Loan or the security for the Loan shall be due and payable
on the Maturity Date.
3. SECURITY FOR NOTE. This Note is secured by a first deed of trust,
mortgage, or deed to secure debt (which is herein called the "SECURITY
INSTRUMENT") encumbering the Property. This Note, the Security Instrument, and
all other documents and instruments evidencing and/or securing this Note whether
now or hereafter executed by Borrower or others in connection with or related to
the Loan, including any assignments of leases and rents, other assignments,
security agreements, financing statements, guaranties, indemnity agreements
(including environmental indemnity agreements), letters of credit, or
completion/repair, debt service, tenant finish/leasing commissions, earn-out or
other escrow/holdback or similar agreements or arrangements, together with all
amendments, modifications, substitutions or replacements thereof, are sometimes
herein collectively referred to as the "LOAN DOCUMENTS" or individually as a
"LOAN DOCUMENT". All amounts that are now or in the future become due and
payable under this Note, the Security Instrument, or any other Loan Document,
including any Prepayment Consideration (as hereinafter defined) and all
applicable expenses, costs, charges, and fees will referred to herein as the
"DEBT." The remedies of Lender as provided in this Note, any other Loan
Document, or under applicable law shall be cumulative and concurrent, may be
pursued singularly, successively, or together at the sole discretion of Lender,
and may be exercised as often as an occasion shall occur. The failure to
exercise any right or remedy shall not be construed as a waiver or release of
the right or remedy respecting the same or any subsequent default.
4. FINANCIAL STATEMENT REPORTING DEPOSIT; REBATE OF DEPOSIT. In
addition to and concurrently with each Monthly Payment, Borrower shall also pay
to Lender a constant monthly amount equal to the Financial Statement Reporting
Deposit. On the first day of the fourteenth (14th) month following the date of
the initial disbursement of funds under this Note (the "DISBURSEMENT DATE"), and
on an annual basis thereafter during the term of this Note, Lender shall remit
to Borrower a portion of the Financial Statement Reporting Deposit then held by
Lender in an amount equal to the aggregate amount of the Financial Statement
Reporting Deposit actually received by Lender during the twelve (12) month
period ending upon the immediately prior annual anniversary of the Disbursement
Date (the "ANNUAL COMPLIANCE PERIOD") provided that no Event of Default (as
hereinafter defined), including any failure by Borrower to strictly comply with
the financial reporting requirements set forth in the Security Instrument, is
currently existing or has occurred in the Annual Compliance Period.
5. PAYMENTS. All amounts payable hereunder shall be payable in lawful
money of the United States of America to Lender at Lender's Address or such
other place as the holder hereof may designate in writing. Each payment made
hereunder shall be made in immediately available funds and must state the
Borrower's Loan Number. If any payment of principal or interest on this Note is
due on a day other than a Business Day (as hereinafter defined), such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in computing interest in connection with such payment.
Any payment on this Note received after 2:00 o'clock p.m. (CST or other
applicable current time in Kansas City, Missouri) shall be deemed to have been
made on the next succeeding Business Day. All amounts due under this Note shall
be payable without set off, counterclaim, or any other deduction whatsoever. All
payments from Borrower to Lender following the occurrence of an Event of Default
shall be applied in such order and manner as Lender elects in its sole
discretion in reduction of costs, expenses, charges, disbursements and fees
payable by Borrower hereunder or under any other Loan Document in reduction of
interest due on unpaid principal, or in of principal. Lender may, without notice
to Borrower or any other person, accept one or more partial payments of any sums
due or past due hereunder from time to time while an uncured Event of Default
exists hereunder, after Lender accelerates the indebtedness evidenced hereby,
and/or after Lender commences enforcement of its remedies under any Loan
Document or applicable law, without thereby waiving any Event of Default,
rescinding any acceleration, or waiving, delaying, or forbearing in the pursuit
of any remedies under the Loan Documents. Lender may endorse and deposit any
check or other instrument tendered in connection with such a partial payment
without thereby giving effect to or being bound by any language purporting to
make acceptance of such instrument an accord and satisfaction of the
indebtedness evidenced hereby. As used herein, the term "Business Day" shall
mean a day upon which commercial banks are not authorized or required by law to
close in Kansas City, Missouri.
6. LATE CHARGE. If any sum payable under this Note or any other Loan
Document is not received by Lender by close of business on the fifth (5th) day
after the date on which it was due, Borrower shall pay to Lender an amount (the
"LATE CHARGE") equal to the lesser of (a) five percent (5%) of the full amount
of such sum or (b) the maximum amount permitted by applicable law in order to
help defray the expenses incurred by Lender in handling and processing such
delinquent payment and to compensate Lender for the loss of the use of such
delinquent payment. Any such Late Charge shall be secured by the Security
Instrument and other Loan Documents. The collection of any Late Charge shall be
in addition to, and shall not constitute a waiver of or limitation of, a default
or Event of Default hereunder or a waiver of or limitation of any other rights
or remedies that Lender may be entitled to under any Loan Document or applicable
law.
7. DEFAULT RATE. Upon the occurrence of an Event of Default (including
the failure of Borrower to make full payment on the Maturity Date), Lender shall
be entitled to receive and Borrower shall pay interest on the outstanding
Principal Balance at the rate of five percent (5%) per annum above the Interest
Rate ("DEFAULT RATE") but in no event greater than the maximum rate permitted
by applicable law. Interest shall accrue and be payable at the Default Rate from
the occurrence of an Event of Default until all Events of Default have been
fully cured. Such accrued interest shall be added to the Outstanding Principal
Balance, and interest shall accrue thereon at the Default Rate until fully paid.
Such accrued interest shall be secured by the Security Instrument and other Loan
Documents. Borrower agrees that Lender's right to collect interest at the
Default Rate is given for the purpose of compensating Lender at reasonable
amounts for Lender's added costs and expenses that occur as a result of
Borrower's default and that are difficult to predict in amount, such as
increased general overhead, concentration of management resources on problem
loans, and increased cost of funds. Lender and Borrower agree that Lender's
collection of interest at the Default Rate is not a fine or penalty, but is
3
intended to be and shall be deemed to be reasonable compensation to Lender for
increased costs and expenses that Lender will incur if there occurs an Event of
Default hereunder. Collection of interest at the Default Rate shall not be
construed as an agreement or privilege to extend the Maturity Date or to limit
or impair any rights and remedies of Lender under any Loan Documents. If
judgment is entered on this Note, interest shall continue to accrue
post-judgment at the greater of (a) the Default Rate or (b) the applicable
statutory judgment rate.
8. ENFORCEMENT AND DEFENSE EXPENSES. Borrower shall pay on demand, in
addition to the principal and interest due hereunder, all expenses of protecting
the security for this Note and all expenses incurred or paid by Lender in
connection with or relating to the Loan Documents and the enforcement thereof,
including costs and expenses incurred or paid in protecting Lender or its
related to or arising out of any lawsuit or proceeding brought by or against
Lender in any court or other forum, including actions or proceedings brought by
or on behalf of Borrower's bankruptcy estate or any guarantor or indemnitor) or
in connection with the collection of any amounts payable hereunder or in
enforcing Lender's rights under the Security Instrument and the other Loan
Documents with respect to the Property, whether or not any legal proceeding is
commenced hereunder or thereunder and whether or not any default or Event of
Default shall have occurred and is continuing, together with interest thereon at
the Default Rate from the date paid or incurred by Lender until such expenses
are paid by Borrower. Such costs and expenses shall include costs for title
insurance searches and endorsements, retention of collection agents, court costs
and litigation expenses in connection with any proceedings of any nature,
including appellate and bankruptcy proceedings, and all reasonable attorneys'
fees and expenses, whether incurred as part of or separately from any formal
legal proceedings.
9. PREPAYMENT; DEFEASANCE.
(a) RESTRICTIONS. Voluntary prepayment of this Note is prohibited
except during the last ninety (90) days of the term when prepayment may be made
in whole, but not in part, without payment of any premium or penalty, on any
Monthly Payment Date.
(b) DEFEASANCE.
(i) Provided that as of the Release Date (as hereinafter defined)
the Debt has not been accelerated, no Event of Default exists, and no event has
occurred that with the passage of time, giving of notice, or modification or
termination of the automatic stay of Section 362 of the United States Bankruptcy
Code may become an Event of Default ("DEFAULT"), Borrower may cause the release
of the Property from the lien of the Security Instrument and the other Loan
Documents ("DEFEASANCE") on any Monthly Payment Date following the date which is
two (2) years and fifteen (15) days after the "startup day" within the meaning
of Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended (together
with any successor statute and the related Treasury Department Regulations
including temporary regulations, the "CODE") of any "real estate mortgage
investment conduit" within the meaning of Section 860D of the Code ("REMIC")
that holds this Note upon Borrower's satisfaction of the following conditions:
(A) Borrower shall provide Lender not less than thirty (30)
days prior written notice specifying a Monthly Payment Date (such Date,
or any extended date upon which
Borrower and Lender may mutually agree is referred to herein as the "RELEASE
DATE") on which the Defeasance Collateral (as hereinafter defined) is to be
delivered;
(B) On the Release Date Borrower shall pay in full all accrued and
unpaid interest and all other sums due under this Note and under the other Loan
Documents up to the Release Date, including all costs and expenses including
attorneys' fees incurred by Lender or is servicers or other agent(s) or to or on
behalf of any rating agencies in connection with such release and related
transactions (including the review of the proposed Defeasance Collateral and the
preparation of the Defeasance Security Agreement (as hereinafter defined) and
related documentation) together with a defeasance processing fee in an amount
equal to one-half of one percent (0.5%) of the then Outstanding Principal
Balance but in no event less than (A) $10,000 or greater than (B) $20,000; and
(C) Borrower shall deliver the following, all of which must be
satisfactory to Lender in its sole discretion, at or prior to the release of the
Property and substitution of the Defeasance Collateral:
(1) Direct, non-callable and non-redeemable securities evidencing
an obligation to pay principal and interest in a full and timely manner that
are direct obligations of the Untied States of America for the payment of which
its full faith and credit is pledged (the "DEFEASANCE COLLATERAL") in amounts
sufficient to pay all scheduled principal and interest payments required under
this Note, which securities provide for payments prior, but as close as
possible, to the Business Day prior to each successive Monthly Payment Date
occurring after the Release Date, with each such payment being equal to or
greater than the amount of the corresponding Monthly Payment required to be made
hereunder for the balance of the term hereof plus the amount required to be paid
on the Maturity Date (the "SCHEDULED DEFEASANCE PAYMENTS"), 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 such instruments as may be required by the
depository institution or other entity 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 Defeasance Security Agreement (as hereinafter defined) a
valid, first priority lien and security interest therein in favor of Lender in
conformity with all applicable state and federal laws governing granting of such
security interest;
(2) any and all agreements, certificates, opinions, documents or
instruments required by Lender in its sole discretion in connection with the
Defeasance including (a) a pledge and security agreement, in form and substance
satisfactory to Lender in its sole discretion, creating a first priority
security interest in favor of Lender in the Defeasance Collateral (the
"DEFEASANCE SECURITY AGREEMENT"), and (b) any and all agreements, certificates,
opinions, documents, or instruments required by Lender in its sole discretion
that affect or relate in any way to the maintenance by any REMIC that holds this
Note of its qualification and status for tax purposes as a REMIC;
(3) a certificate of Borrower certifying that (a) all of the
requirements set forth in the Section 9(b) have been satisfied, (b) the
transactions that are being carried out pursuant to this section 9(b) (including
specifically the release of the lien of the Security Instrument) are being
effected to facilitate the disposition of the Property or any other customary
commercial transaction and not as part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages, and (c) the
amounts of the Defeasance Collateral comply with all the requirements of this
section including the requirement that the Defeasance Collateral shall generate
monthly amounts equal to or greater than the Scheduled Defeasance Payments
required to be paid under this Note through the Maturity Date;
(4) an opinion of counsel for Borrower, delivered by counsel
acceptable to Lender in its sole discretion, stating, among other things but
without substantive qualification, that (a) Lender has a valid, duly perfected,
first priority security interest in the Defeasance Collateral and that the
Defeasance Security Agreement is enforceable against Borrower in accordance with
its terms, (b) neither the Defeasance nor any other transaction that occurs
pursuant to the provisions of this Section 9(b) has caused or will cause the
Loan (including for this purpose of the Loan Documents) to cease to be a
"qualified mortgage" within the meaning of Section 860G of the Code, either
under the provisions of Treasury Regulation Sections 1.860G-2(a)(8) or
1.860G-2(b) (as such regulations may be amended or superseded from time to time)
or under any other provision of the Code or otherwise, and (c) the tax
qualification and status of any REMIC or any other entity that holds this Note
will not be adversely impaired or affected as a result of the Defeasance and/or
any other transaction that occurs pursuant to the provisions of this Section
9(b);
(5) a certificate and opinion delivered by an independent
certified public accounting firm acceptable to Lender in its sole discretion (a)
certifying that the amounts of the Defeasance Collateral comply with all the
requirements of this Section including the requirement that the Defeasance
Collateral shall generate monthly amounts equal to or greater than the Scheduled
Defeasance Payments required to be paid under this Note through the Maturity
Date; and (b) setting forth the change in the yield of the Loan that results
from the Defeasance and any other transactions that occur pursuant to the
provisions of this Section 9(b), including supporting computations which shall
be made in a manner that is consistent with the provisions of Treasury
Regulation Sections 1.1001-3(e)(1) and (2), and opining that such change has not
constituted or caused and will not constitute or cause a significant
modification of the Loan (including for this purpose the Loan Documents) under
such provisions of the regulations;
(6) written confirmation from the rating agencies that have rated
any of the securities issued by any REMIC that holds this Note to the effect
that the Defeasance will not result in a downgrading, withdrawal or
qualification of the respective ratings in effect immediately prior to such
Defeasance for any rated securities then outstanding, and if required by any
rating agency or Lender, a non-consolidation opinion with respect to the
Defeasance Obligor (as hereinafter defined) in form and substance satisfactory
to Lender and such rating agency; and
6
(7) Borrower shall (unless otherwise agreed to in writing by
Lender in its sole discretion), at Borrower's sole expense, assign all
of its obligations under this Note, together with the Defeasance
Collateral, to a successor entity ("DEFEASANCE OBLIGOR") designated by
Lender in its sole discretion (including to an entity that is owned
and/or controlled by Lender) that is a single purpose, bankruptcy
remote entity as determined by Lender in its sole discretion. The
Defeasance Obligor shall execute an assumption agreement pursuant to
which it shall assume Borrower's obligations under this Note, the Loan
Documents, and the Defeasance Security Agreement. As conditions to
such assignment and assumption, Borrower shall (a) deliver to Lender an
opinion of counsel delivered by counsel acceptable to Lender in its
sole discretion stating, among other things, that such assumption
agreement has been duly authorized and is enforceable against Borrower
and the Defeasance Obligor in accordance with its terms, that the Note,
the Defeasance Security Agreement and the other Loan Documents, as so
assumed, have been duly authorized and are enforceable against the
Defeasance Obligor in accordance with their respective terms, and that
the delivery of the Defeasance Collateral to the Defeasance Obligor
does not constitute a fraudulent transfer, preferential payment, or
other voidable transfer under applicable bankruptcy law and (b) pay all
costs and expenses including attorneys' fees incurred by Lender or its
servicer or other agent(s) in connection with such assignment and
assumption (including the review of the proposed transferee and the
preparation of the assumption agreement and related documentation).
Upon such assumption, Borrower shall be relieved of its obligations
under this Note, the Defeasance Security Agreement and the other Loan
Documents, other than those obligations which are specifically intended
to survive the payment of this Note and the termination, satisfaction
or assignment of this Note, the Defeasance Security Agreement or the
other Loan Documents to the exercise of Lender's rights and remedies
under any of such documents and instruments.
(ii) Upon compliance with the requirements of this Section,
Lender shall release the Property from the lien of the Security Instrument and
the other Loan Documents, and the Defeasance Collateral shall constitute
collateral which shall secure this Note and all other obligations under the Loan
Documents. Lender will, at Borrower's expense, execute and deliver any
agreements reasonably requested by Borrower to release the lien of the security
Instrument from the Property. Borrower, pursuant to the Defeasance Security
Agreement, shall authorize and direct that the payments received from Defeasance
Collateral be made directly to Lender and applied to satisfy the obligations to
Borrower under this Note.
(iii) Upon the release of the Property in accordance with
this Section 9(b), Borrower shall have no further right to prepay this Note.
Borrower shall pay any revenue, documentary stamp or intangible taxes or any
other tax or charge due in connection with the transfer of this Note or
otherwise required to accomplish the agreements of this Section.
(iv) If any notice of defeasance is given pursuant to Section
9(b)(i)(A), Borrower shall be required to defease the Loan on the Release Date
(unless such notice is revoked by Borrower prior to the Release Date in which
event Borrower shall immediately reimburse Lender for any and all reasonable
costs and expenses incurred by Lender in connection with Borrower's giving of
such notice and revocation).
7
(v) At Borrower's request, Lender may agree in its sole
discretion that Lender or its servicer or other agent, acting on Borrower's
behalf as Borrower's agent and attorney-in-fact, shall purchase the Defeasance
Collateral that Borrower is required to deliver the Lender pursuant to Section
9(b)(i)(C)(1). If such and agreement is made then Borrower shall deposit with
Lender or Lender's servicer or other agent, as directed by Lender or Lender's
agent(s), on or prior to the Release Date a sum money sufficient to purchase the
Defeasance Collateral. By making such deposit Borrower shall thereby appoint
Lender or Lender's servicer or other agent as Borrower's agent and
attorney-in-fact, with full power of substitution, for the purpose of purchasing
the Defeasance Collateral with the funds so provided and delivering the
Defeasance Collateral to Lender pursuant to Section 9(b)(i)(C)(1).
(vi) Notwithstanding any release of the Security Instrument
or any Defeasance hereunder, the Defeasance Obligor shall be bound by and
obligated under Section 3.1 (Payment of Debt), 7.2 (Further Acts Etc.), 7.4(a)
(Estoppel Certificates), 11.2 (Application of Proceeds), 11.7 (Other Rights
Etc.), and 14.2 (Marshalling and Other Matters) and Article 13 (Indemnification)
of the Security Instrument; provided, however, that all references therein to
"PROPERTY" or "PERSONAL PROPERTY" shall be deemed to refer only to the
Defeasance Collateral delivered to Lender.
(c) DEFAULT PREPAYMENT. If a Default Prepayment (as hereinafter
defined) occurs, such Default Prepayment shall be deemed to be a voluntary
prepayment under this Note and in such case the applicable Prepayment
Consideration (as hereinafter defined) shall be due and payable to Lender in
connection with such Default Prepayments. The Prepayment Consideration shall be
secured by all security and collateral for the Loan and shall be added to the
Outstanding Principal Balance for all purposes including accrual of interest,
judgment on the Note, foreclosure (whether through power of sale, judicial
proceeding, or otherwise), redemption, and bankruptcy (including pursuant to
Section 506 to the United States Bankruptcy Code). The term "DEFAULT
PREPAYMENT" shall mean a prepayment of any portion of the principal amount of
this Note made after occurrence of a Default or Event of Default under any
circumstances including a prepayment in connection with reinstatement of the
Security Instrument provided by statute under foreclosure proceedings or
exercise of power of sale, any statutory right of redemption exercised by
Borrower or any other party having a statutory right to redeem or prevent
foreclosure or power of sale, any sale in foreclosure or under exercise of a
power of sale or otherwise (including pursuant to a credit bid made by Lender in
connection with such sale), or any other collection action by Lender.
Classification and treatment of Lender's claim pursuant to a plan of
reorganization in bankruptcy shall also be deemed to be a Default Prepayment
hereunder. The "PREPAYMENT CONSIDERATION" (as the term is used in this Note)
shall mean the present value, as of the date of the occurrence of the Default,
of the remaining scheduled payments of principal and interest from the date of
the occurrence of the Default through the Maturity Date (including any balloon
payment), which shall be determined by discounting such payments at the Discount
Rate (hereinafter defined) less the amount of principal being prepaid. The term
"DISCOUNT RATE" shall mean the rate that, when compounded monthly, is equivalent
to the Treasury Rate (hereinafter defined) when compounded semi-annually. The
term "TREASURY RATE" shall mean the yield calculated by the linear interpolation
of the yields, as reported in Federal Reserve Statistical Release H.15-Selected
Interest Rates under the heading U.S. Government Securities/Treasury Constant
Maturities for the week ending prior to the Prepayment Date, of U.S. Treasury
constant maturities with maturity dates (one longer and one
8
shorter) most nearly approximating the Maturity Date. (If Release H.15 is no
longer published, Lender shall select a comparable publication to determine
the Treasury Rate.)
10. MAXIMUM RATE PERMITTED BY LAW. All agreements in this Note and all
other Loan Documents are expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of maturity of the indebtedness
evidenced hereby or otherwise, shall the amount agreed to be paid hereunder for
the use, forbearance, or detention of money exceed the highest lawful rate
permitted under applicable usury laws. If, from any circumstance whatsoever,
fulfillment of any provision of this Note or any other Loan Document at the time
performance of such provision shall be due shall involve exceeding any usury
limit prescribed by law that a court of competent jurisdiction may deem
applicable hereto, then, ipso facto, the obligations to be fulfilled shall be
reduced to allow compliance with such limit, and if, from any circumstance
whatsoever, Lender shall ever receive as interest an amount that would exceed
the highest lawful rate, the receipt of such excess shall be deemed a mistake
and shall be cancelled automatically or, if theretofore paid, such excess shall
be credited against the principal amount of the indebtedness evidenced hereby to
which the same may lawfully be credited, and any portion of such excess not
capable of being so credited shall refunded immediately to Borrower.
11. EVENTS OF DEFAULT; ACCELERATION OF AMOUNT DUE. Lender may in its
sole discretion, without notice to Borrower, declare the entire Debt, including
the principal balance of the Loan, all accrued interest, and all costs,
expenses, charges and fees payable under any Loan Document, together with any
applicable Prepayment Consideration, immediately due and payable, and Lender
shall have all remedies available to it at law or equity for collection of the
amounts due, if any of the following (the "EVENTS OF DEFAULT") occurs:
(a) Borrower fails to make full and punctual payment of any
Monthly Payment or any other amount payable on a monthly basis under this Note,
the Security Instrument or any other Loan Document within five (5) days of the
date on which such payment was due; or
(b) Borrower fails to make full payment of the Debt when due,
whether on the Maturity Date, upon acceleration or prepayment, or otherwise; or
(c) Borrower fails to make full and punctual payment of any
Late Charges, costs and expenses due hereunder, or any other sum of money
required to be paid to Lender under this Note, the Security Instrument or under
any other Loan Document (other than any payment described in subclauses(a) and
(b) immediately above), which failure is not cured on or before the fifth (5th)
day after Lender's written notice to Borrower that such payment is required.
(d) an Event of Default occurs under the Security Instrument
or any other Loan Document.
12. TIME OF ESSENCE. Time is of the essence with regard to each
provision contained in this Note.
13. TRANSFER AND ASSIGNMENT. This Note may be freely transferred and
assigned by Lender. Borrower's right to transfer its rights and obligations with
respect to the Debt, and to be released from liability under this Note, shall be
governed by the Security Instrument.
9
14. AUTHORITY OF PERSONS EXECUTING NOTE. Borrower warrants and
represents that the persons or officers who are executing this Note and the
other Loan Documents on behalf of Borrower have full right, power and authority
to do so, and that this Note and the other Loan Documents constitute valid and
binding documents, enforceable against Borrower in accordance with their terms,
and that no other person, entity, or party is required to sign, approve, or
consent to, this Note.
15. SEVERABILITY. The terms of this Note are severable, and should any
provision be declared by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions shall, at the option of Lender, remain
in full force and effect and shall in no way, be impaired.
16. BORROWER'S WAIVERS. Borrower and all others liable hereon hereby
waive presentation for payment, demand, notice of dishonor, protest, and notice
of protest, notice of intent to accelerate, and notice of acceleration, stay of
execution and all other suretyship defenses to payment generally. No release of
any security held for the payment of this Note, or extension of any time
periods for any payments due hereunder, or release of collateral that may be
granted by Lender from time to time, and no alteration, amendment or waiver of
any provision of this Note or of any of the other Loan Documents, shall modify,
waive, extend, change, discharge, terminate or affect the liability of Borrower
and any others that may at any time be liable for the payment of this Note or
the performance of any covenants contained in any of the Loan Documents.
17. GOVERNING LAW. This Note shall be governed and construed generally
according to the laws of the jurisdiction in which the real property collateral
for this Note is located without regard to the conflicts of law provisions
thereof ("GOVERNING STATE").
18. JURISDICTION AND VENUE. BORROWER HEREBY CONSENTS TO PERSONAL
JURISDICTION IN THE GOVERNING STATE. VENUE OF ANY ACTION BROUGHT TO ENFORCE THIS
NOTE OR ANY OTHER LOAN DOCUMENT OR ANY ACTION RELATING TO THE LOAN OR THE DEBT
OR THE RELATIONSHIPS CREATED BY OR UNDER THE LOAN DOCUMENTS ("ACTION") SHALL, AT
THE ELECTION OF LENDER, BE IN (AND IF ANY ACTION IS ORIGINALLY BROUGHT IN
ANOTHER VENUE, THE ACTION SHALL AT THE ELECTION OF LENDER BE TRANSFERRED TO) A
STATE OR FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE GOVERNING
STATE. BORROWER HEREBY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF THE
STATE COURTS OF THE GOVERNING STATE AND OF FEDERAL COURTS LOCATED IN THE
GOVERNING STATE IN CONNECTION WITH ANY ACTION AND HEREBY WAIVES ANY AND ALL
PERSONAL RIGHTS UNDER THE LAWS OF ANY OTHER STATE TO OBJECT TO JURISDICTION
WITHIN SUCH STATE FOR PURPOSES OF ANY ACTION. Borrower herby waives and agrees
not to assert, as a defense to any Action or a motion to transfer venue of any
Action, (i) any claim that it is not subject to such jurisdiction, (ii) any
claim that any Action may not be brought against it or is not maintainable in
those courts or that this Note or any of the other Loan Documents may not be
enforced in or by those courts, or that it is exempt or immune from execution,
(iii) that the Action is brought in an inconvenient forum, or (iv) that the
venue for the Action is in any way improper.
10
19. NOTICES. Any notice required or permitted to be given hereunder
must be in writing and given (a) by depositing same in the United States mail,
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested; (b) by delivering the same in person to
such party; (c) by transmitting a facsimile copy to the correct facsimile phone
number of the intended recipient (with a second copy sent by registered or
certified regular mail); or (d) by depositing the same into the custody of a
nationally recognized overnight delivery service addressed to the party to be
notified. In the event of mailing, notices shall be deemed effective three (3)
days after posting; in the event of overnight delivery, notices shall be deemed
effective on the next Business Day following deposit with the delivery service;
in the event of personal service or facsimile transmissions, notices shall be
deemed effective when delivered. For purposes of notice, the addresses of the
parties shall be as set forth in the Table. From time to time either party may
designate another address than the address set forth for all purposes of this
Note by giving the other party no less than ten (10) days advance notice of such
change of address in accordance with the notice provisions hereof.
20. AVOIDANCE OF DEBT PAYMENTS. To the extent that any payment to
Lender and/or any payment or proceeds of any collateral received by Lender in
reduction of the Debt is subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, to Borrower
(or Borrower's successor) as a debtor in possession, or to a receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then the portion of the Debt intended to have been satisfied by
such payment or proceeds shall remain due and payable hereunder, be evidenced by
this Note, and shall continue in full force and effect as if such payment or
proceeds had never been received by Lender whether or not this Note has been
marked "paid" or otherwise cancelled or satisfied and/or has been delivered to
Borrower, and in such event Borrower shall be immediately obligated to return
the original Note to Lender and any marking of "paid" or other similar marking
shall be of no force and effect.
21. NONRECOURSE.
(a) Subject to the provisions of subsections (b) and (c) of
this Section 21, Lender shall not be entitled to recover any deficiency judgment
against Borrower or any general partner (if any) of Borrower on this Note,
provided, however, the foregoing shall not be interpreted to: (i) impair or
affect the right of Lender to enforce any of its rights or remedies (other than
any right to a deficiency judgment) provided for in any of the Loan Documents or
under applicable law in full accordance with the terms thereof including but not
limited to the right of Lender to name Borrower or any general partner of
Borrower as a party defendant in any action or suit for specific performance,
foreclosure, or sale (or similar remedy) under the Security Instrument, or any
other Loan Document; (ii) impair or affect the validity or enforceability of any
guaranty, indemnity agreement (including but not limited to any environmental
indemnity agreement), letter of credit, or other similar third party agreement
or undertaking made in connection with this Note, the Security Instrument, or
any other Loan Document; (iii) impair or affect Lender's right to offset any and
all amounts outstanding under any of the Loan Documents against any claim or
amount that may be asserted against Lender by Borrower or any partners, members,
shareholders, or other owners of legal or beneficial interests in Borrower; or
(iv) affect the validity or enforceability of or impair the right of Lender to
bring suit and obtain specific performance or personal, recourse judgment to
enforce the liability of
12
Borrower or any other person or entity to the extent of, and Borrower hereby
agrees to be personally liable for, any loss, damage, cost, expense, liability,
or claim incurred by or made against Lender (including all attorneys' fees and
expenses and other collection and litigation expenses) arising out of or in
connection with any of the following:
(A) Borrower or any affiliate, agent, or employee of Borrower
misappropriates any rents or other Property income or collateral
proceeds including but not limited to insurance or condemnation
proceeds or awards;
(B) Borrower or any affiliate, agent, or employee of Borrower
fails to apply or pay over any tenant security deposits or other
refundable deposits in accordance with the terms of the applicable
lease or other agreement or the Security Instrument or any other Loan
Document;
(C) Borrower or any affiliate, agent, or employee of Borrower
receives rents or other payments from tenants more than one month in
advance and fails to apply them accordance with the Loan Documents;
(D) following the occurrence of an Event of Default, Borrower
or any affiliate, agent, or employee of Borrower (including Borrower in
its capacity as a debtor or debtor in possession in a bankruptcy
proceeding) fails either to apply rents or other Property income,
whether collected before or after such Event of Default, to the
ordinary, customary, and necessary expenses of operating the Property
or, upon demand, to deliver such rents or other Property income to
Lender;
(E) waste is committed on the Property during a period while
Borrower or any affiliate, agent, or employee of Borrower is in
possession thereof ("waste" meaning the diminution in the Property's
value resulting from Borrower's negligent or willful failure to manage,
maintain, repair and otherwise operate the Property in a commercially
reasonable manner);
(F) any damage to the Property or the Lender is caused as a
result of the intentional misconduct or gross negligence of Borrower or
any affiliate, agent, or employee of Borrower;
(G) any Property is removed in violation of the terms of the
Loan Documents;
(H) Borrower fails, in accordance with the terms of the Loan
Documents, to maintain insurance or to pay taxes, assessments, or other
liens or claims that could create liens affecting the Property (unless
Lender is escrowing funds therefor and fails to make such payments or
has taken possession of the Property following an Event of Default,
has received all rents from the Property applicable to the period for
which such insurance, taxes or other items are due, and thereafter
fails to make such payments);
(I) there is any fraud or material misrepresentation by
Borrower or any of its affiliates, and guarantor, any indemnitor or any
agent, employee, or other
13
person with actual or apparent authority to make statements or
representations on behalf of Borrower, any affiliate of Borrower, or
any guarantor or indemnitor ("apparent authority" meaning such
authority as the principal knowingly or negligently permits the agent
to assume, or which he holds the agent out as possessing); or
(J) Borrower fails, following an Event of Default, to deliver to
Lender on demand all security deposits, books and records relating to
the Property and in the possession or control of Borrower or any
affiliate, agent, or employee of Borrower.
(b) Notwithstanding anything to the contrary in the provisions of
subsection (a) of this Section, Borrower and any general partner of Borrower
shall be personally liable for the Debt if the Property or any part thereof
shall at any time hereafter become property of the estate, or an asset in a
bankruptcy, insolvency, receivership, liquidation, winding up, or other similar
type of proceeding or if Borrower shall at any time hereafter make a general
assignment for the benefits of its creditors.
(c) Nothing herein shall be deemed to constitute a waiver by Lender of
any right Lender may have under Sections 506(a), 506(b), 1111(b) or any other
provision of the United States Bankruptcy Code to file a claim for the full
amount of the Debt (as defined in the Security Instrument) or to require that
all collateral shall continue to secure all of the Debt.
22. MISCELLANEOUS. Neither this Note nor any of the terms hereof,
including but not limited to the provisions of this Section, may be terminated,
amended, supplemented, waived or modified orally, but only by an instrument in
writing executed by the party against which enforcement of the termination,
amendment, supplement, waiver or modification is sought, and the parties hereby:
(a) expressly agree that it shall not be reasonable for any of them to rely on
any alleged, non-written amendment to this Note; and (c) expressly agree that it
shall be beyond the scope of authority (apparent or otherwise) for any of their
respective agents to agree to any non-written modification of this Note. If
Borrower consists of more than one person or entity, then the obligations and
liabilities of each person or entity shall be joint and several. As used in this
Note, (i) the terms "include," "including" and similar terms shall be construed
as if followed by the phrase "without being limited to," (ii) words of
masculine, feminine, or neuter gender shall mean and include the correlative
words of the other genders, and words importing the singular number shall mean
and include the plural number, and vice versa, (iii) all captions to the
Sections hereof are used for convenience and reference only and in no way
define, limit or describe the scope or intent of, or in any way affect, this
Note, (iv) no inference in favor of, or against, Lender or Borrower shall be
drawn from the fact that such party has drafted any portion hereof any other
Loan Document, and (v) the words "Lender" and "Borrower" shall include their
respective successors, assigns, heirs, personal representatives, executors and
administrators. In the event of a conflict between or among the terms,
covenants, conditions or provisions of the Loan Documents, the term(s),
covenant(s), condition(s) and/or provision(s) that Lender may elect to enforce
from time to time so as to enlarge the interest of Lender in its security,
afford Lender the maximum financial benefits or security for the Debt, and/or
provide Lender the maximum assurance of payment of Debt in full shall control.
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS BEEN PROVIDED WITH SUFFICIENT AND
NECESSARY TIME AND OPPORTUNITY TO REVIEW THE TERMS OF THIS
13
NOTE, THE SECURITY INSTRUMENT, AND EACH OF THE LOAN DOCUMENTS, WITH ANY
AND ALL COUNSEL IT DEEMS APPROPRIATE, AND THAT NO INFERENCE IN FAVOR
OF, OR AGAINST, LENDER OR BORROWER SHALL BE DRAWN FROM THE FACT THAT
EITHER SUCH PARTY HAS DRAFTED ANY PORTION HEREOF, OR THE SECURITY
INSTRUMENT, OR ANY OF THE LOAN DOCUMENTS.
23. [INTENTIONALLY OMITTED].
24. LOCAL LAW PROVISIONS. In the event of any inconsistencies
between the terms and conditions of this Section and any other terms
and conditions of this Note (other than the terms and conditions of
Section 25), the terms and conditions of this Section shall be binding.
24.1 WAIVER OF COUNTERCLAIM AND JURY TRIAL. BORROWER HEREBY
KNOWINGLY WAIVES THE RIGHT TO ASSERT ANY COUNTERCLAIM, OTHER THAN A
COMPULSORY COUNTERCLAIM, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST
BORROWER BY LENDER OR ITS AGENTS. ADDITIONALLY, BORROWER AND LENDER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THE
LOAN OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THE LOAN, THIS
NOTE, THE SECURITY INSTRUMENT, OR ANY OTHER LOAN DOCUMENTS, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR
WRITTEN), OR ACTION OF BORROWER OR LENDER. THIS PROVISION IS MATERIAL
INDUCEMENT FOR LENDER'S MAKING OF THE LOAN.
24.2 DOCUMENTARY STAMP TAX AND INTANGIBLE TAX. All documentary
stamp tax required pursuant to Chapter 201, Florida Statutes, and
intangible tax required pursuant to Chapter 199, Florida Statutes, are
being paid in connection with the recording of Security Instrument in
the Public Records of Broward County, Florida.
25. ADDITIONAL PROVISIONS. In the event of any inconsistencies
between the terms and conditions of this Section and any other terms
and conditions of this Note, the terms and conditions of this Section
shall be binding.
25.1 INTEREST RATE. From the date disbursement of the Loan
proceeds, until the Anticipated Repayment Date (as hereinafter
defined) interest shall accrue on the OPB at a rate 6.78
percent (6.78%) per annum ("INITIAL INTEREST RATE"). From and
after the Anticipated Repayment Date (as hereinafter defined),
interest shall accrue on the OPB at a rate equal to the
greater of: (i) Initial Interest Rate plus two (2) percent per
annum; or (ii) the Treasury Rate for the week ending prior to
the Anticipated Repayments Date plus two (2) percent per annum
("ADJUSTED INTEREST RATE"). As used in this Note, the term
"Interest Rate" shall mean the Initial Interest Rate or the
Adjusted Interest Rate, as applicable. From and after
Anticipated Repayment Date, interest shall accrue on the OPB
at the Adjusted Interest Rate. Interest accrued at the
Adjusted Interest Rate and not paid pursuant to this Section
shall be deferred and added to the OPB of this Note (together
with all accrued interest thereon) and shall earn interest at
the Adjusted Interest Rate to the extent permitted by
applicable law (such accrued interest, together with any
14
together with any interest accrued thereon is hereinafter defined as "ACCRUED
INTEREST"). All of the OPB, including and Accrued Interest, shall be due and
payable on the Maturity Date.
25.2 PREPAYMENT RESTRICTIONS. Section 9(a) is amended in its entirety
to provide as follows: Voluntary prepayment of this Note is prohibited except
during the last 243 months of the term when prepayment may be made in whole, but
not in part, without payment of any payment premium or penalty on any Monthly
Payment Date.
Borrower's right to cause a Defeasance (as hereinafter defined) in
accordance with Section 9(b) shall end on the Anticipated Repayment Date (as
hereinafter defined). In the tenth line of Section 9(b)(i)(C)(1), and the final
line of Section 9(b)(i)(C)(3), and the sixth line of Section 9(b)(i)(C)(5), and
the twenty-first line of Section 9(c), and the last line of Section 9(c) the
phrase "Maturity Date" is deleted and the phrase "Anticipated Repayment Date" is
substituted therefor.
25.3 HYPERAMORTIZATION. Contemporaneously herewith, Borrower has
executed a Collection and Disbursement Agreement (the "DISBURSEMENT AGREEMENT").
The Disbursement Agreement provides that all sums deposited on the Disbursement
Account shall be applied as set forth therein. From and after the Anticipated
Repayment Date, provided no Event of Default has occurred and is continuing and
no event has occurred which, with the passage of time, notice or both, would
constitute an Event of Default, all funds in the Disbursement Account shall be
disbursed, unless Lender in its reasonable discretion determines otherwise, by
Lender from such account in accordance with Section 3 of the Disbursement
Agreement.
25.4 SECURITY FOR NOTE. The fourth line of Section 3 is hereby
modified by deleting "or others" and substituting "and/or indemnitors" therefor.
25.5 FINANCIAL STATEMENT REPORTING DEPOSIT. Notwithstanding any
provision to the contrary herein, the provisions of Section 4 are hereby waived
so long as the following conditions precedent remain satisfied: (i) Borrower
shall have remained in strict compliance with the financial reporting
requirements set forth in the Security Instrument for the immediately preceding
year; and (ii) no Event of Default shall have occurred and be continuing. If
either of the foregoing conditions are, at any time, not satisfied, the
provisions of Section 4 shall immediately be reinstated.
25.6 DEFAULT RATE. The first line of Section 7 is hereby modified by
deleting "Upon the occurrence" and substituting therefor: "During the
continuance".
25.7 ENFORCEMENT AND DEFENCE EXPENSES. The second line of Section 8
is hereby modified by inserting "reasonable" between "all" and "expenses".
Notwithstanding any provision in Section 8 to the contrary, Borrower
shall not be responsible for the costs and expenses of protecting or enforcing
the Security Instrument and other Loan Documents if, but only if, said costs and
expenses arise due to Lender's gross negligence or willful misconduct.
15
25.8 DEFEASANCE. The second line of Section 9(b)(i) is hereby modified
by deleting "exists" and substituting "is continuing" therefor.
The third line of Section 9(b)(i)(B) is hereby modified by inserting
"reasonable" between "all" and "costs".
The second line of Section 9(b)(i)(C) is hereby modified by deleting
"sole" and substituting "reasonable" therefor.
The second line of Section 9(b)(i)(C)(2) is hereby modified by deleting
"sole" and substituting "reasonable" therefor.
The seventh line of Section 9(b)(i)(C)(2) is hereby modified by
deleting "sole" and substituting "reasonable" therefor.
The second line of Section 9(b)(i)(C)(5) is hereby modified by deleting
"sole" and substituting "reasonable" therefor.
The second, fourth and sixth lines of Section 9(b)(i)(C)(7) are hereby
modified by deleting "sole" and substituting "reasonable" therefor.
The first line of Section 9(b)(i)(C)(7)(b) is hereby modified by
inserting "reasonable" between "all" and "costs".
25.9 BORROWER'S WAIVERS. The seventh line of Section 16 is hereby
modified by inserting "otherwise" and substituting "shall" and "modify".
The eighth line of Section 16 is hereby modified by inserting
"otherwise" between "or" and "affect".
25.10 NOTICES. In addition to the requirements of Section 19 hereof,
Lender shall use reasonable efforts to provide a courtesy copy of any notice
required or permitted to be given by Lender to Borrower hereunder to the
following addressees:
Chief Financial Officer of Borrower
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Alan M. Hurvitz
Honigman Miller Schwartz & Cohn LLP
32270 Telegraph Road, Suite 225
Bingham Farms, Michigan 48025-2457
Phone: 248/566-8454
Fax: 2487/566-8455
Lender's failure to send such courtesy copies shall not impair the
effect of the notice sent to Borrower.
16
25.11 NONRECOURSE. Section 21 is hereby deleted and the following
substituted therefor:
"(a) Notwithstanding anything in the Loan Documents to the contrary, but
subject to the qualifications hereinbelow set forth, Lender agrees that (i)
Borrower shall be liable upon the indebtedness evidenced hereby and for the
other obligations arising under the Loan Documents to the full extent (but only
to the extent) of the Property, (ii) if default occurs in the timely and proper
payment of all or any part of such indebtedness evidenced hereby or in the
timely and proper performance of the other obligations of Borrower under the
Loan Documents, any judicial proceedings brought by Lender against Borrower
shall be limited to the preservation, enforcement and foreclosure, or any
thereof, of the liens, security titles, estates, assignments, rights and
security interests now or at any time hereafter securing the payment of this
Note and/or the other obligations of Borrower under the Loan Documents, and
confirmation of any sale under power of sale, and no attachment, execution or
other writ of process shall be sought, issued or levied upon any assets,
properties or funds of Borrower or its managers or members other than the
Property except with respect to the liability described below in this Section,
and (iii) in the event of a foreclosure of such liens, security titles, estates,
assignments, right or security interests securing the payment of this Note
and/or the other obligations of Borrower under the Loan Documents, whether by
judicial proceedings or exercise of power of sale, no judgment for any
deficiency upon the indebtedness evidenced hereby shall be sought or obtained by
Lender against Borrower, except with respect to the liability described below in
this Section; provided, however, that notwithstanding the foregoing provisions
of this Section, Borrower shall be fully and personally liable and subject to
legal action (a) for proceeds paid under any insurance policies (or paid as a
result of any other claim or cause of action against any person or entity) by
reason of damage, loss or destruction to all or any portion of the Property, to
the full extent of such proceeds not previously delivered to Lender, but which,
under the terms of the Loan Documents, should have been delivered to Lender, (b)
for proceeds or awards resulting from the condemnation or other taking in lieu
of condemnation of all or any portion of the Property, or any of them, to the
full extent of such proceeds or awards not previously delivered to Lender, but
which, under the terms of the Loan Documents, should have been delivered to
Lender, (c) for all tenant security deposits or other refundable deposits paid
to or held by Borrower or any other person or entity in connection with leases
of all or any portion of the Property which are not applied in accordance with
the terms of the applicable lease or other agreement, (d) for rent and other
payments received from tenants under leases of all or any portion of the
Property paid more than one (1) month in advance and not otherwise paid towards
debt service under the Loan, paid to Lender or applied towards the ordinary and
necessary operating expenses of owning and operating the Property, (e) for
rents, issues, profits and revenues of all or any portion of the Property
received or applicable to a period after any notice of default (and during the
continuance of said default) from Lender hereunder or under the Loan Documents
in the event of any default by Borrower hereunder or thereunder which are not
either applied to the ordinary and necessary expenses of owning and operating
the Property or paid to Lender, (f) for damage to the Property as a result of
the intentional misconduct or gross negligence of Borrower or any of its
principals, officers, managers, members or general partners, or any
removal of all or any portion of the Property in violation of the terms of
17
the Loan Documents, to the full extent of the losses or damages incurred by
Lender on account of such damage or removal, (g) for Borrower's failure to pay
any valid taxes, assessments, mechanic's liens, materialment's liens or other
liens which could create liens on any portion of the Property which would be
superior to the lien or security title of the Security Instrument or the other
Loan Documents, to the full extent of the amount claimed by such lien claimant,
(h) for all obligations and indemnities of Borrower under the Loan Documents
relating to hazardous or toxic substances or compliance with the environmental
laws and regulations to the full extent of any losses or damages (including
those resulting from diminution in value of any Property) incurred by Lender as
a result of the existence of such hazardous or toxic substances or failure to
comply with environmental laws or regulations, (i) for failure to pay, in
accordance with the terms of the Loan Documents, the Taxes and Insurance
Premiums (as defined in the Security Instrument) attributable to the (A) the
premises demised by that certain lease between Publix Super Markets, Inc. and
Borrower dated July 17, 1989 (the "PUBLIX LEASE") and (B) the premises demised
by that certain lease between Walgreen Co. and Borrower dated February 9, 1990
(the "WALGREENS LEASE"), (j) for fraud or material misrepresentation by
Borrower or any of its principals, officers, managers, members or general
partners, any guarantor, any indemnitor or other person authorized or
apparently authorized to make statement or representations on behalf of
Borrower, any principal, officer, manager, member or partner of Borrower, any
guarantor or any indemnitor, to the full extent of any losses, damages and
expenses of Lender on account thereof.
b. Notwithstanding anything to the contrary in the provisions of
subsection (a) of this section, nothing contained in this section shall (i) be
deemed to be a release or impairment of the indebtedness evidenced by this Note
or the other obligations of Borrower under the Loan Documents or the lien of the
Loan Documents upon the Property, or (ii) preclude Lender from foreclosing the
Loan Documents in case of any default or from enforcing any of the other rights
of Lender except as stated in this section, or (iii) limit or impair in any way
whatsoever the Environmental Indemnity Agreement of even date executed and
delivered in connection with the indebtedness evidenced by this Note or
release, release, reduce, waive or impair in any way whatsoever,any obligation
or any party to such Environmental Indemnity Agreement.
c. Notwithstanding anything to the contrary in the provisions of
subsection (a) of this section, Lender shall be entitled to recover a deficiency
judgement against Borrower and any general partner, and Borrower and any general
partner of Borrower shall be personally liable for the Debt, if the Property or
any part thereof shall at any time hereafter through he actions of Borrowers,
become property of the estate, or an asset in a bankruptcy, insolvency,
receivership, liquidation, winding up, or other similar type or proceeding or if
Borrower shall at any time hereafter make a general assignment for the benefit
of its creditors.
d. Nothing herein shall be deemed to constitute a waiver by Lender of
any right which Lender may have under Sections 506(b), 1111(b) or any other
provisions of the United State Bankruptcy Code to file a claim for the full
amount of the Debt or to require that all collateral shall continue to secure
all of the Debt.
18
Intending to be fully bound, Borrower has executed this Note effective
as of the day and year first above written
BORROWER: RAMCO/CORAL CREEK, LLC,
a Michigan limited liability company
(SEAL)
By: RAMCO/CORAL CREEK MANAGER, LLC,
a Michigan limited liability company, Manager
By: RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership, Member
By: RAMCO-GERSHENSON PROPERTIES
TRUST, a Maryland real estate investment
Trust, General Partner
By: /s/ Dennis Gershenson
-------------------------------------
PRESIDENT
Its:
------------------------------------
WITNESSES:
/s/ Terra L. Stenerson
- --------------------------
Name: Terra L. Stenerson
---------------------
Date: 6/4/02
---------------------
/s/ Catherine Clark
- --------------------------
Name: Catherine Clark
---------------------
Date: 6/4/02
---------------------
Pay to the order of , without recourse.
--------------------------------
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By:
------------------------------------------
Print Name:
----------------------------------
Print Title:
---------------------------------
19
STATE OF Michigan )
)ss.
COUNTY OF Wayne )
The foregoing instrument was acknowledged before me this 4th
day of June, 2002, by Dennis Gershenson, President of Ramco-Gershenson
Properties Trust, a Maryland real estate investment Trust, General
Partner of Ramco-Gershenson Properties, L.P., a Delaware limited
partnership, Member of Ramco/Coral Creek Manager, LLC, a Michigan
limited liability company, Manager of Ramco/Coral Creek, LLC, a
Michigan limited liability company and on behalf of Ramco/Coral Creek,
LLC, a Michigan limited liability company. He is personally known to me
or has produced Drivers License as identification.
/s/ Stephanie Hall
------------------------------------------
Signature of person taking acknowledgment
Stephanie Hall
------------------------------------------
Name, typed, or printed or stamped
Notary
------------------------------------------
Title or rank
--------------------------------------
Serial number if any
20