Exhibit 4.1
AMENDED AND RESTATED FIXED RATE NOTE
$110,000,000.00 March 30, 2007
FOR VALUE RECEIVED, RAMCO JACKSONVILLE LLC, a Delaware limited liability
company ("Maker"), having its principal place of business at 31500 Northwestern
Highway, Suite 300, Farmington Hills, Michigan 48334, promises to pay to the
order of JPMORGAN CHASE BANK, N.A., a national banking association, its
successors or assigns ("Payee") at the office of Payee or its agent, designee or
assignee at 270 Park Avenue, New York, New York 10017, or at such place as the
holder hereof may from time to time designate in writing, the principal sum of
ONE HUNDRED TEN MILLION AND NO/100 DOLLARS ($110,000,000.00) in lawful money of
the United States of America with interest thereon to be computed on the unpaid
principal balance from time to time outstanding from the date of this Note
(herein so called) at the Applicable Interest Rate (hereinafter defined). The
term "Applicable Interest Rate" as used in this Note shall mean a rate of
5.4355% per annum.
This Amended and Restated Fixed Rate Note (this "Note") evidences the new
and additional indebtedness of $31,227,625 and also the existing indebtedness of
$78,772,375 previously evidenced by, the bonds, notes or obligations, including
any supplemental or replacement notes, if any, secured by those certain
mortgages described on Exhibit A hereto (the "Existing Indebtedness") to Payee;
it being the intention of this Note that it shall constitute both a renewal,
extension and modification, amendment and restatement of the terms of payment of
such Existing Indebtedness and also an expression of the terms of payment of
such new and additional indebtedness.
1. (i) Payment Terms. The principal and interest of this Note shall be
payable as follows:
(a) Maker shall pay a payment of interest only on the Loan Amount
(defined herein) on the date hereof for the period from the date hereof through
the last day of April, 2007, both inclusive;
(b) Maker shall pay monthly interest only payments on the Loan Amount
calculated in accordance with terms hereof commencing on the first (1st) day of
May, 2007 (the "First Payment Date"), and on the first (1st) day of each
calendar month thereafter up to and including the first (1st) day of March,
2017, each of such payments to be applied to the payment of interest computed at
the Applicable Interest Rate;
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Note: This Note (defined herein) is a renewal of a note as to which all
documentary stamp and intangible taxes have been paid. The principal amount of
such note is $78,772,375, of which $56,222,900.60 has been advanced and is
outstanding. Documentary stamp taxes in the amount of $275,703.40 and intangible
taxes in the amount of $157,544.80 were paid at the time of recordation of the
Mortgage recorded in Official Records Book 12586, Page 500 of the Public Records
of Duval County, Florida and Final Amendment recorded in Official Records Book
13829, Page 802, of the Public Records of Duval County, Florida. The original
note as amended is attached to this Note. Documentary stamps in the amount of
$109,296.95 and intangible tax in the amount of $62,455.25 are due and being
simultaneously paid with the recording of the Amended and Restated Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Filing securing
this Note.
(c) The balance of the outstanding principal sum and all interest
thereon shall be due and payable on the first (1st) day of April, 2017 (the
"Maturity Date").
Each monthly payment date described in Sections 1(b) above, including,
without limitation, the First Payment Date, shall be referred to hereinafter as
a "Payment Date" and each monthly payment described in Sections 1(b) above shall
be referred to hereinafter as a "Monthly Installment." As used herein, "Loan
Amount" shall mean, at any given time, the outstanding principal balance of the
Loan.
Interest on the outstanding principal sum of this Note shall be
calculated by multiplying the actual number of days elapsed in each Interest
Period (as defined below) by a daily rate based on a three hundred sixty (360)
day year. In computing the number of days during which such interest accrues,
the day on which funds are initially advanced shall be included regardless of
the time of day such advance is made, and the day on which funds are repaid
shall be included unless repayment is credited prior to close of business.
Whenever any payment to be made hereunder shall be stated to be due on a day
that is not a Business Day, the payment shall be made on the first Business Day
immediately following such due date. The term "Business Day" shall mean a day on
which commercial banks are not authorized or required by law to close in New
York, New York.
In the absence of a specific determination by Payee to the contrary, all
payments paid by Maker to Payee in connection with the obligations of Maker
under this Note and under the other Loan Documents shall be applied in the
following order of priority: (a) to amounts, other than principal and interest,
due to Payee pursuant to this Note or the other Loan Documents; (b) to the
portion of accrued but unpaid interest accruing on this Note; and (c) to the
unpaid principal balance of this Note. Maker irrevocably waives the right to
direct the application of any and all payments at any time hereafter received by
Payee from or on behalf of Maker, and Maker irrevocably agrees that Payee shall
have the continuing exclusive right to apply any and all such payments against
the then due and owing obligations of Maker in such order of priority as Payee
may deem advisable.
(ii) Advances.
(a) INITIAL ADVANCE. On the date hereof, Payee shall make an advance
of Loan proceeds to Maker, which when added to the principal balance of the
Existing Indebtedness outstanding on the date hereof, will equal the amount of
SEVENTY-FIVE MILLION AND 00/100 DOLLARS ($75,000,000).
(b) SECOND ADVANCE. On or before April 30, 2007, Payee shall make an
advance of the remaining Loan proceeds to Maker in the amount of THIRTY-FIVE
MILLION AND 00/100 DOLLARS ($35,000,000) (the "Second Advance"), provided that
the following conditions are met:
(1) no Event of Default has occurred and is continuing;
(2) Maker provides Payee written notice of its request for the
Second Advance five (5) days prior to the date upon which Maker requires
the Second Advance be made by Payee;
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(3) Maker shall provide to Payee (A) a signed authorization to
obtain credit reports and searches, current financial statements showing
net worth and liquidity, a signed certification of financial condition, and
any other information necessary for Payee to run its customary credit and
background verifications on Jacksonville River City Partners LLC, a Florida
limited liability company ("Jacksonville") and any direct or indirect
owners of Jacksonville that own greater than 20% direct or indirect
interest in Jacksonville, which credit information and searches shall be
satisfactory to Payee in Payee's sole discretion or (B) evidence reasonably
satisfactory to Payee that on or before the occurrence of the Second
Advance, Ramco-Gershenson Properties, L.P., a Delaware limited partnership,
will acquire and own 100% of the direct ownership interests in Maker;
(4) Maker shall deliver (I) (A) the Occupancy Reserve Funds and
Holdback Reserve Funds required to be delivered pursuant to Sections 6(a)
and (b) of the Mortgage or (B) guarantees in lieu of the Reserve Funds
pursuant to Section 6(c) of the Mortgage and (II) the completion guarantee
required to be delivered pursuant to Section 6(d) of the Mortgage;
(5) Maker shall deliver to Payee a revised substantive
nonconsolidation opinion in form and substance as agreed to by Payee on the
date hereof; provided, however, if Jacksonville remains a direct or
indirect owner of Borrower, such opinion shall be revised to reflect the
necessary facts, pairings and discussions and such other matters as are
reasonably required by Payee in connection with Jacksonville's and its
affiliates' direct and/or indirect ownership interests in Maker;
(6) Maker shall deliver to Payee a Restricted Account Agreement
(as defined in the Mortgage), acceptable to Lender, from Bank of America,
N.A. or another Eligible Institution (as defined in the Mortgage)
acceptable to Payee; and
(7) Maker shall pay all costs and expenses incurred by Payee in
connection with the disbursement of the Second Advance by Payee.
(c) Notwithstanding the foregoing or anything herein to the contrary,
in the event for any reason the Second Advance does not occur, Maker still must
deliver to Payee the items set forth in Sections 1(ii)(b)(3), (4), (5), and (6)
above and shall pay for any and all costs and expenses incurred by Payee in
connection with the same on or before April 30, 2007.
(d) In the event the Second Advance does not occur on or before April
30, 2007, Payee shall no longer have any obligation to make the Second Advance
to Maker. Furthermore, after the occurrence of a Secondary Market Transaction,
Payee shall not make any Second Advance to Maker; provided, that, no Secondary
Market Transaction shall occur on or before April 30, 2007.
2. Interest Period. The term "Interest Period" shall mean the period
beginning and including the first (1(st)) day of a calendar month through and
including the last day of such calendar month.
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3. Default and Acceleration. The whole of the outstanding principal sum of
this Note, together with all interest accrued and unpaid thereon, and all other
sums due under the Mortgage (hereinafter defined), the Loan Documents (as
hereinafter defined) and this Note, including, without limitation, any
Prepayment Consideration (as hereinafter defined) or Yield Maintenance Premium
(as hereinafter defined) (all such sums hereinafter collectively referred to as
the "Debt") shall without notice become immediately due and payable at the
option of Payee if any payment due on the Maturity Date is not paid on such date
or if any other payment required in this Note is not paid on or before the date
when due, or if any Event of Default (as defined in the Mortgage) occurs and is
continuing, or on the happening of any other default and continuance thereof,
after the expiration of any applicable notice and grace periods, herein or under
the terms of the Mortgage or other Loan Documents (hereinafter collectively an
"Event of Default"), and further provided that the Debt shall automatically
become immediately due and payable, without notice or any exercise of any option
on the part of Payee, if an Event of Default of the type set forth in Section
22(g) of the Mortgage occurs with respect to Maker. All of the terms, covenants
and conditions contained in the Mortgage and the other Loan Documents are hereby
made part of this Note to the same extent and with the same force as if they
were fully set forth herein. In the event that it should become necessary to
employ counsel to collect the Debt or to protect or foreclose the security
hereof, Maker also agrees to pay reasonable attorneys' fees for the services of
such counsel whether or not suit be brought. Acceleration of Debt as set forth
in this section constitutes an involuntary prepayment for which the Yield
Maintenance Premium provided for elsewhere herein shall be due and payable. This
provision was specifically bargained for as consideration for the extension of
credit based upon the interest rate granted by Payee.
4. Default Interest. Maker does hereby agree that upon the occurrence and
continuance of an Event of Default or upon the failure of Maker to pay the Debt
in full on the Maturity Date, Payee shall be entitled to receive and Maker shall
pay interest on the entire unpaid outstanding principal sum at the rate of the
lesser of (a) the maximum rate permitted by applicable law, or (b) five percent
(5%) above the Applicable Interest Rate (the "Default Rate"). The Default Rate
shall be computed from the occurrence of the Event of Default until the actual
receipt and collection of the Debt. This charge shall be added to the Debt, and
shall be deemed secured by the Mortgage. This section, 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 Payee by reason
of the occurrence of any Event of Default. In the event the Default Rate is
above the maximum rate permitted by applicable law, the Default Rate shall be
the maximum rate permitted by applicable law.
5. Prepayment; Defeasance.
(a) The outstanding principal balance of this Note may not be prepaid
in whole or in part prior to December 1, 2016 (the "First Open Prepayment
Date").
(b) After the date which is the earlier to occur of (i) the second
(2nd) anniversary of the "start-up 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 the "real estate investment conduit"
("REMIC") of the REMIC Trust established in connection with the last
Securitization (as defined in the Mortgage) involving any portion of this Loan
or (ii)
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a Payment Date on or after that date which is three (3) years after the date of
this Note (the "Release Date"), and prior to the First Open Prepayment Date,
Maker may voluntarily defease the Debt in whole, but not in part (such event, a
"Total Defeasance"), by providing Payee with the Total Defeasance Collateral (as
defined below) producing payments which replicate the Scheduled Total Defeasance
Payments (as defined below), provided that any Total Defeasance by Maker shall
be subject to the satisfaction of the following conditions precedent and other
provisions below:
(1) Maker shall provide not less than thirty (30) days prior
written notice to Payee, specifying the date on which the Total Defeasance
is to occur (the "Total Defeasance Date"). Such notice shall indicate the
principal amount of this Note to be defeased;
(2) Maker shall pay to Payee all accrued and unpaid interest on
the outstanding principal balance of this Note to, but not including, the
Total Defeasance Date;
(3) Maker shall pay to Payee all other sums, not including
scheduled interest or principal payments, due under this Note, the
Mortgage, and the other Loan Documents;
(4) Maker shall deliver to Payee an amount equal to the full
outstanding principal amount of this Note together with an additional
amount such that the aggregate amount (the "Total Defeasance Deposit") is
at least sufficient to purchase direct, non-callable obligations of the
United States of America (the "Total Defeasance Collateral") that provide
payments on or prior to, but as close as possible to, all successive
scheduled payment dates after the Total Defeasance Date upon which interest
and/or principal payments are due under this Note through and including the
First Open Prepayment Date and in amounts equal to the scheduled payments
due on such dates, including, on the First Open Prepayment Date, the
outstanding principal balance of this Note, together with all interest
accrued thereon and all other sums then due and owing upon this Note and
under the Loan Documents (the "Scheduled Total Defeasance Payments");
(5) Maker shall deliver to Payee on or prior to the Total
Defeasance Date the following: (a) an executed security agreement, in form
and substance satisfactory to Payee, creating a first priority lien on the
Total Defeasance Deposit and the Total Defeasance Collateral; (b) an
opinion of counsel for Maker in form and substance satisfactory to Payee in
its sole discretion stating, among other things, that Maker has legally and
validly transferred and assigned the Total Defeasance Collateral and all
obligations, rights and duties under and to this Note to the Successor
Borrower (as defined below); that Payee has a perfected first priority
security interest in the Total Defeasance Deposit and the Total Defeasance
Collateral delivered by Maker, and that any REMIC trust formed pursuant to
Section 860D of the Code that holds this Note will not fail to maintain its
status as a REMIC within the meaning of Section 860D of the Code as a
result of such Total Defeasance; (c) a certificate of Maker certifying that
all requirements relating to defeasance set forth in this Note and any
other Loan Documents
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have been satisfied; (d) evidence in writing from each of the Rating
Agencies (as defined below) to the effect that the Total Defeasance will
not result in a qualification, downgrade or withdrawal of any rating in
effect immediately prior to the Total Defeasance Date for any securities or
"Pass-Through Certificates" issued pursuant to the terms of a trust and
servicing agreement in the event that this Note or any interest therein is
included in a REMIC or other securitization vehicle; (e) a certificate from
an independent certified public accounting firm selected by Maker and
approved by Payee certifying that the Total Defeasance Collateral is
sufficient to satisfy the payments required under this Note as described
above; (f) such other opinions as are customarily required in connection
with a defeasance at the time of such Total Defeasance; and (g) such other
certificates or instruments and Payee may reasonably request;
(6) Maker shall deliver such other certificates, documents and
instruments as Payee may reasonably request; and
(7) Maker shall pay all actual costs and expenses to Payee
incurred in connection with the Total Defeasance, including any costs and
expenses associated with a release of the lien of the Mortgage as provided
below as well as reasonable accountants' and attorneys' fees and expenses.
(c) For purposes hereof, "Rating Agencies" shall mean, collectively,
(i) Standard and Poor's Rating Services, (ii) Moody's Investors Service, Inc.,
(iii) Fitch Ratings. (or its affiliates), and (iv) any other rating agency
designated by Payee, and the respective successors and assigns of each.
(d) In connection with each Total Defeasance, Maker hereby appoints
Payee as its agent and attorney-in-fact for the purpose of using the Total
Defeasance Deposit to purchase the Total Defeasance Collateral. Notwithstanding
the foregoing or anything herein to the contrary, Maker may purchase the Total
Defeasance Collateral with the Total Defeasance Deposit and deliver to Payee the
Total Defeasance Collateral in lieu of the Total Defeasance Deposit. Maker,
pursuant to the Defeasance Security Agreement (defined herein) or other
appropriate document, shall authorize and direct that the payments received from
the Total Defeasance Collateral may be made directly to the account maintained
by, or for the benefit of, Payee (unless otherwise directed by Payee) and
applied to satisfy the obligations of Maker or Successor Borrower under this
Note. If the entire Note has been defeased and the conditions precedent listed
above and all other terms and conditions set forth herein have been satisfied,
the Property shall be released from the lien of the Mortgage and the Total
Defeasance Collateral, pledged pursuant to the Defeasance Security Agreement,
shall be the sole source of collateral securing this Note. In connection with
the release of the lien, Maker shall submit to Payee, not less than ten (10)
days prior to the Total Defeasance Date, a release of lien for the Mortgage and
related Loan Documents (including any guaranty) for execution by Payee. Such
release shall be in form appropriate in the jurisdiction in which the Property
is located and satisfactory to Payee in its sole discretion. In addition, Maker
shall pay all recording costs, fees and expenses associated with recording the
release of lien. Maker shall provide all other documentation Payee reasonably
requires to be delivered by Maker in connection with such release, together with
a certificate certifying that such documentation (i) is in compliance with all
applicable laws, and (ii) will effect such release in accordance with the terms
of this Note.
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(e) Provided no Event of Default shall have occurred and remain
uncured, Maker shall have the right at any time after the Release Date and prior
to the First Open Prepayment Date to voluntarily defease a portion of the Loan
in such amount as is requested by Maker (the "Partial Defeasance Amount") by
providing Payee with the Partial Defeasance Collateral (defined below) producing
payments which replicate the Scheduled Partial Defeasance Payments (as defined
below) (such event, a "Partial Defeasance") upon satisfaction of the following
conditions precedent:
(1) Maker shall provide Payee not less than thirty (30) days
notice (or a shorter period of time if permitted by Payee in its sole
discretion) but not more than ninety (90) days notice specifying a date
(the "Partial Defeasance Date") on which the Partial Defeasance is to
occur. Such notice shall indicate the Partial Defeasance Amount;
(2) Maker shall pay to Payee all accrued and unpaid interest on
the outstanding principal balance of this Note to, but not including, the
Partial Defeasance Date;
(3) Maker shall deliver to Payee an amount equal to the full
outstanding principal amount of the Defeased Note (defined below) together
with an additional amount such that the aggregate amount (the "Partial
Defeasance Deposit") is at least sufficient to purchase direct,
non-callable obligations of the United States of America (the "Partial
Defeasance Collateral") that provide payments on or prior to, but as close
as possible to, all successive scheduled payment dates after the Partial
Defeasance Date upon which interest and/or principal payments are due under
the Defeased Note through and including the First Open Prepayment Date and
in amounts equal to the scheduled payments due on such dates, including, on
the First Open Prepayment Date, the outstanding principal balance of the
Defeased Note, together with all interest accrued thereon and all other
sums then due and owing upon the Defeased Note and under the Loan Documents
(the "Scheduled Partial Defeasance Payments");
(4) Payee shall prepare and Maker shall execute all necessary
documents to amend and restate this Note and issue two substitute notes,
one note having a principal balance equal to the Partial Defeasance Amount
(the "Defeased Note"), and the other note having a principal balance equal
to the excess of (A) the original principal amount of the Loan, over (B)
the amount of the Defeased Note (the "Undefeased Note"). The Defeased Note
and Undefeased Note shall have identical terms as the Note except for the
principal balance; and, in connection therewith, the monthly payment and
the amount of each such payment applied to interest and/or principal
thereafter shall be divided between the Defeased Note and the Undefeased
Note in the same proportion as the unpaid principal balance (in each case
immediately after the Partial Defeasance) of the Defeased Note and the
Undefeased Note, as the case may be, bears to the aggregate principal
balance due under the Defeased Note and the Undefeased Note immediately
after the Partial Defeasance. The Defeased Note and the Undefeased Note
shall be cross defaulted and cross collateralized unless the Rating
Agencies shall require otherwise or unless a Successor Borrower that is not
an affiliate of Maker is established pursuant to Section 5(f). A Defeased
Note may not be the subject of any further defeasance;
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(5) Maker shall execute and deliver to Payee a security
agreement, in form and substance satisfactory to Payee, creating a first
priority lien on the Partial Defeasance Deposit and the Partial Defeasance
Collateral;
(6) Maker shall deliver to Payee on or prior to the Partial
Defeasance Date the following: (a) an executed security agreement, in form
and substance satisfactory to Payee, creating a first priority lien on the
Partial Defeasance Deposit and the Partial Defeasance Collateral; (b) an
opinion of counsel for Maker in form and substance satisfactory to Payee in
its sole discretion stating, among other things, that Maker has legally and
validly transferred and assigned the Partial Defeasance Collateral and all
obligations, rights and duties under and to this Note to the Successor
Borrower; that Payee has a perfected first priority security interest in
the Partial Defeasance Deposit and the Partial Defeasance Collateral
delivered by Maker, and that any REMIC trust formed pursuant to Section
860D of the Code that holds this Note will not fail to maintain its status
as a REMIC within the meaning of Section 860D of the Code as a result of
such Partial Defeasance; (c) a certificate of Maker certifying that all
requirements relating to defeasance set forth in this Note and any other
Loan Documents have been satisfied; (d) evidence in writing from each of
the Rating Agencies to the effect that the Partial Defeasance will not
result in a qualification, downgrade or withdrawal of any rating in effect
immediately prior to the Partial Defeasance Date for any securities or
"Pass-Through Certificates" issued pursuant to the terms of a trust and
servicing agreement in the event that this Note or any interest therein is
included in a REMIC or other securitization vehicle; (e) a certificate from
an independent certified public accounting firm selected by Maker and
approved by Payee certifying that the Partial Defeasance Collateral is
sufficient to satisfy the payments required under this Note as described
above; (f) such other opinions as are customarily required in connection
with a defeasance at the time of such Partial Defeasance; and (g) such
other certificates or instruments as Payee may reasonably request;
(7) Maker shall deliver such other certificates, documents and
instruments as Payee may reasonably request; and
(8) Maker shall pay all actual costs and expenses to Payee
incurred in connection with the Partial Defeasance, as well as reasonable
accountants' and attorneys' fees and expenses.
In connection with each Partial Defeasance, Maker hereby appoints
Payee as its agent and attorney-in-fact for the purpose of using the Partial
Defeasance Deposit to purchase the Partial Defeasance Collateral.
Notwithstanding the foregoing or anything herein to the contrary, Maker may
purchase the Partial Defeasance Collateral with the Partial Defeasance Deposit
and deliver to Payee the Partial Defeasance Collateral in lieu of the Partial
Defeasance Deposit. Maker, pursuant to the Defeasance Security Agreement or
other appropriate document, shall authorize and direct that the payments
received from the Partial Defeasance Collateral may be made directly to the
account maintained by, or for the benefit of, Payee (unless otherwise directed
by Payee) and applied to satisfy the obligations of Maker or Successor Borrower
under this Note
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(f) Maker shall form a special-purpose bankruptcy remote entity (the
"Successor Borrower") designated by Maker and approved by Payee in its sole
discretion to be the obligor under this Note. Maker shall, at Payee's request,
assign all of its obligations and rights under this Note to the Successor
Borrower. In connection therewith, the Successor Borrower shall execute an
assumption agreement in form and substance satisfactory to Payee in its sole
discretion pursuant to which it shall assume Maker's obligations under this Note
and the security agreement, in form and substance satisfactory to Payee,
creating a first priority lien on the Total Defeasance Deposit and the Total
Defeasance Collateral or the Partial Defeasance Collateral and the Defeasance
Collateral Account, as applicable (each, a "Defeasance Security Agreement"), and
Maker and any guarantors shall be released from their obligations with respect
to such assumed documents. The sole assets of the Successor Borrower shall be
the Total Defeasance Collateral or Partial Defeasance Collateral, as applicable.
In connection with such assignment and assumption, Maker shall:
(1) deliver to Payee an opinion of counsel in form and substance
and delivered by counsel satisfactory to Payee in its sole discretion
stating, among other things, that such assumption agreement is enforceable
against Maker and the Successor Borrower in accordance with its terms, that
the Note, the Defeasance Security Agreement and any other documents
executed in connection with such Defeasance are enforceable against the
Successor Borrower in accordance with their respective terms and that the
delivery of the Total Defeasance Deposit and transfer of the Total
Defeasance Collateral or Partial Defeasance Collateral, as applicable, to
Successor Borrower does not constitute a fraudulent conveyance or a
preference payment under applicable bankruptcy law;
(2) pay all actual costs and expenses incurred by Payee or its
agents in connection with such assignment and assumption (including,
without limitation, any reasonable fees and disbursements of legal
counsel); and
(3) pay up to $1,000 to Successor Borrower as consideration for
assuming the obligations under the Note and the Defeasance Security
Agreement; provided, notwithstanding anything to the contrary herein or in
the Loan Documents, no other assumption fee shall be payable by Maker in
connection with such assumption.
(g) If, prior to the First Open Prepayment Date, and following the
occurrence of any Event of Default, Maker shall tender payment of an amount
sufficient to satisfy all or any portion of the Debt, or if the balance of the
Debt shall otherwise become due and owing, as a result of acceleration upon the
occurrence of an Event of Default or otherwise, Maker shall immediately pay, in
addition to the Debt and any other amounts due under the terms of this Note and
the other Loan Documents, an amount equal to the Yield Maintenance Premium (as
defined below; the Yield Maintenance Premium is sometimes alternatively referred
to in the Loan Documents as the "Prepayment Consideration"; references in the
Loan Documents to Prepayment Consideration shall mean the Yield Maintenance
Premium as described and defined herein); provided that if a complete or partial
prepayment results from the application to the Debt of the casualty or
condemnation proceeds from the property, no Yield Maintenance Premium will be
imposed. Partial prepayments of principal resulting from the application of
casualty or insurance proceeds to the Debt shall not change the amounts of
subsequent monthly installments
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nor change the dates on which such installments are due, unless Payee shall
otherwise agree in writing.
For purposes hereof, "Yield Maintenance Premium" shall be the amount
equal to the greater of (A) one percent (1%) of the outstanding principal
balance of this Note at the time such payment or proceeds are received, or (B)
(x) the present value as of the date such payment or proceeds are received of
the remaining scheduled payments of principal and interest from the date such
payment or proceeds are received through the First Open Prepayment Date
(including any balloon payment) determined by discounting such payments at the
Discount Rate (as hereinafter defined), less (y) the amount of the payment or
proceeds received. The term "DISCOUNT RATE" means the rate which, when
compounded monthly, is equivalent to the Treasury Rate (as hereinafter defined),
when compounded semi-annually ("YIELD MAINTENANCE"). The term "TREASURY RATE"
means 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 date the payment or such proceeds are received, of
U.S. Treasury constant maturities with maturity dates (one longer and one
shorter) most nearly approximating the First Open Prepayment Date. If said
Federal Reserve Statistical Release or any other information necessary for
determination of the Treasury Rate in accordance with the foregoing is no longer
published or is otherwise unavailable, then the Treasury Rate shall be
determined by Payee based on comparable data. The Payee's calculation of the
Prepayment Consideration shall be conclusive except in the case of manifest
error.
(h) Maker acknowledges and agrees that the Yield Maintenance Premium
is not a penalty or additional interest, but is Payee's cost of liquidating its
investments in the event of any prepayment of this Note. Maker hereby covenants
and agrees to indemnify Payee and hold it harmless from any costs, fees,
expenses (including attorney's fees) resulting from any action, litigation or
judicial decision alleging, claiming or holding that the Yield Maintenance
Premium is a penalty or additional interest, and from any damages (whether
compensatory or punitive) ordered by a court, judge or administrative law judge
which may determine that the Yield Maintenance Premium is a penalty or
additional interest. If any Yield Maintenance Premium is determined to be
additional interest on a payment in the nature of interest, it shall be reduced
to the extent necessary to prevent violation of any usury or similar laws.
(i) In the event of prepayment of this Note (in whole but not in part)
on or after the First Open Prepayment Date, Maker shall pay, together with the
amount of such prepayment, an amount equal to (i) the interest which would have
been accrued on the amount of such prepayment during the remaining days of the
Interest Period within which such prepayment is made less the amount of
investment income that would be earned from investing the amount of the
principal prepayment in Permitted Investments, offered by the servicer of the
Loan and selected by Maker, from the date of such prepayment to the next
succeeding Payment Date, (ii) all accrued and unpaid interest and (iii) any
other sums due under this Note or any other Loan Document.
6. Security. This Note is evidence of that certain loan made by Payee to
Maker contemporaneously herewith (the "Loan"). This Note is secured by (a) that
certain Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing of even date herewith
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(as the same may be amended, restated, extended, supplemented, or otherwise
modified from time to time, the "Mortgage") given by Maker for the use and
benefit of Payee covering the "Property" (as defined in the Mortgage) including,
without limitation, the fee estate of Maker in certain real property as more
particularly described therein (all such "Property" is referred to herein,
collectively, as the "Mortgaged Property"), (b) an Assignment of Leases and
Rents of even date herewith executed by Maker in favor of Payee (as the same may
be amended, restated, extended, supplemented or otherwise modified from time to
time, the "Assignment of Leases"), and (c) the other Loan Documents (as
hereinafter defined). The term "Loan Documents" as used in this Note relates
collectively to this Note, the Mortgage, the Assignment of Leases and any and
all other documents securing, evidencing, or guaranteeing all or any portion of
the Loan or otherwise executed and/or delivered in connection with this Note and
the Loan, provided, however, that such term shall in no event be deemed to
include that certain Environmental Liabilities Agreement dated as of the date
hereof in favor of Payee.
7. Maximum Legal Interest. It is expressly stipulated and agreed to be the
intent of Maker and Payee at all times to comply with applicable state law or
applicable United States federal law (to the extent that it permits Payee to
contract for, charge, take, reserve, or receive a greater amount of interest
than under state law) and that this section shall control every other covenant
and agreement in this Note. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under this
Note, or contracted for, charged, taken, reserved, or received with respect to
the Debt, or if Payee's exercise of the option to accelerate the Maturity Date,
or if any prepayment or Yield Maintenance Premium paid by Maker results in Maker
having paid any interest in excess of that permitted by applicable law, then it
is Payee's express intent that all excess amounts theretofore collected by Payee
shall be credited on the principal balance of this Note and all other Debt and
the provisions of this Note immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity
of the execution of any new documents, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder or thereunder. All sums paid or agreed to be paid to Payee 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 of the Debt so that the rate
or amount of interest on account of the Debt does not exceed the maximum lawful
rate from time to time in effect and applicable to the Debt for so long as the
Debt is outstanding. Notwithstanding anything to the contrary contained herein,
it is not the intention of Payee to accelerate the maturity of any interest that
has not accrued at the time of such acceleration or to collect unearned interest
at the time of such acceleration.
8. Late Charges. Notwithstanding any longer period granted under Section 3
hereof in connection with the occurrence of an Event of Default and Payee's
acceleration remedies, if any sum payable under this Note is not paid on or
before the date on which it is due (other than the payment due on the Maturity
Date), Maker shall pay to Payee upon demand an amount equal to the lesser of
five percent (5%) of such unpaid sum or the maximum amount permitted by
applicable law to defray the expenses incurred by Payee in handling and
processing such delinquent payment and to compensate Payee for the loss of the
use of such delinquent payment and such amount shall be secured by the Mortgage
and other Loan Documents.
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9. No Oral Changes. 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 Maker or Payee, 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.
10. Joint and Several Liability. If Maker consists of more than one person
or party, the obligations and liabilities of each such person or party shall be
joint and several.
11. Waivers. Except as specifically provided in the Loan Documents, Maker
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, notice of protest, and non-payment, notice of intent to
accelerate the maturity hereof and notice of such acceleration. 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 Mortgage or the other Loan Documents made by agreement between
Payee and any other person or party shall release, modify, amend, waive, extend,
change, discharge, terminate or affect the liability of Maker, and any other who
may become liable for the payment of all or any part of the Debt, under this
Note, the Mortgage or the other Loan Documents.
12. Limitations on Recourse. Notwithstanding anything in the Loan Documents
to the contrary, but subject to the qualifications and other provisions in
clauses (a), (b) and (c) of this Section 12 below, Payee and Maker agree that:
(i) Maker shall be liable upon the Debt and for the other obligations arising
under the Loan Documents to the full extent (but only to the extent) of all of
the Mortgaged Property and any other items, property or amounts which are
collateral or security for the Loan; (ii) if a default occurs in the timely and
proper payment of all or any part of the Debt, any judicial proceedings brought
by Payee against Maker 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 the Debt and/or the other obligations of Maker under the Loan
Documents, and no attachment, execution or other writ of process shall be
sought, issued or levied upon any assets, properties or funds of Maker other
than the Mortgaged Property; and (iii) in the event of a foreclosure of such
liens, security titles, estates, assignments, rights or security interests
securing the payment of the Debt, no judgment for any deficiency upon the Debt
shall be sought or obtained by Payee against Maker.
(a) Nothing contained in this Section 12 shall (1) be deemed to be a
release or impairment of the Debt or the lien of the Loan Documents upon the
Mortgaged Property, or (2) preclude Payee from foreclosing under the Loan
Documents in case of any default or from enforcing any of the other rights of
Payee, including naming Maker as a party defendant in any action or suit for
foreclosure and sale under the Mortgage, or obtaining the appointment of a
receiver or prohibit Payee from obtaining a personal judgment against Maker on
the Debt to the extent (but only to the extent) such judgment may be required in
order to enforce the liens, security titles, estates, assignments, rights and
security interests securing payment of the Debt, or (3) limit or impair in any
way whatsoever the Guaranty (the "Guaranty") of even date executed and delivered
in connection with the indebtedness evidenced by this Note or release, relieve,
reduce, waive or impair in any way whatsoever, any obligation of any party to
the Guaranty or
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(4) release, relieve, reduce, waive or impair in any way whatsoever any
obligations of any person other than Maker which is a party to any of the other
Loan Documents.
(b) In the event (i) any petition or proceeding for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by Maker or any affiliate thereof with
respect to Maker (or if any such petition or proceeding was not so filed by
Maker, but Maker or Guarantor or their respective agents, affiliates, officers
or employees consented to, acquiesced in arranged or otherwise participated or
colluded in bringing about the institution of such petition or proceeding) or
(ii) Maker fails to satisfy its obligations pursuant to Sections 1(ii)(b)(3),
(4), (5) and (6) hereof or Section 1(ii)(c) hereof, as applicable, the
limitations on recourse set forth in this Section 12, including the provisions
of clauses (i), (ii) and (iii) of this Section 12 above, will be null and void
and completely inapplicable, and this Note shall be full recourse to Maker.
(c) Nothing contained herein shall in any manner or way release,
affect or impair the right of Payee to recover, and Maker shall be fully and
personally liable and subject to legal action, for any loss, cost, expense,
damage, claim or other obligation (including without limitation reasonable
attorneys' fees and court costs) incurred or suffered by Payee arising out of or
in connection with the following:
(A) any continuing default beyond any applicable cure periods of
the Environmental Liabilities Agreement executed by Maker for the
benefit of Payee, dated of even date herewith, including the
indemnification provisions contained therein;
(B) the misapplication by Maker, its agents, affiliates, officers
or employees of any funds derived from the Mortgaged Property,
including security deposits, insurance proceeds and condemnation
awards, in violation of the Loan Documents;
(C) Maker's failure to apply proceeds of rents or any other
payments in respect of the leases and other income from the Mortgaged
Property or any other collateral when received to the costs of
maintenance and operation of the Mortgaged Property, to capital
expenditures for the Mortgaged Property and/or leasing costs, tenant
improvements and tenant allowances under leases at the Mortgaged
Property and to the payment of taxes, lien claims, insurance premiums,
monthly payments of principal and interest or escrow payments or other
payments due under the Loan Documents to the extent the Loan Documents
require such proceeds to be then so applied;
(D) any litigation or other legal proceeding related to the Debt
filed by Maker or any guarantor or indemnitor that delays or impairs
Payee's ability to preserve, enforce or foreclose its lien on the
Mortgaged Property, including, but not limited to, the filing of a
voluntary petition concerning Maker under the U.S. Bankruptcy Code, in
which action a claim, counterclaim, or defense is asserted against
Payee, other than any litigation or other legal proceeding in which a
final,
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non-appealable judgment for money damages or injunctive relief is
entered against Payee;
(E) the seizure or forfeiture of the Mortgaged Property, or any
portion thereof, or Payee's interest therein, resulting from criminal
wrongdoing by Maker, its agents, affiliates, officers or employees;
(F) the involuntary bankruptcy of Maker if Maker and any
guarantor are not using their best efforts to obtain dismissal of the
bankruptcy proceeding;
(G) waste to the Mortgaged Property caused by the acts or
omissions of Maker, its agents, affiliates, officers, employees or
contractors; or the removal or disposal of any portion of the
Mortgaged Property by Maker its agents, affiliates, officers,
employees or contractors after an Event of Default to the extent such
Mortgaged Property is not replaced by Maker with like property of
equivalent value, function and design;
(H) failure by Maker to pay any or all such taxes, assessments or
premiums in accordance with terms of the Mortgage, (except for taxes
and assessment which accrue, and premiums which are payable, after
either (1) the date that Payee takes title to the Mortgaged Property
by foreclosure, deed-in-lieu of foreclosure or otherwise or (2) Payee
obtains the appointment of a receiver or otherwise takes possession
directly as a mortgagee in possession (provided, that, Maker has
relinquished possession and control of the Mortgaged Property to such
receiver or Payee and is not disputing the receivership or possession
by the receiver or Payee)), provided, however that Maker's liability
hereunder with respect to failure to pay such taxes shall be limited
to amounts available from the cash flow of the Mortgaged Property;
(I) in the event of fraud or material misrepresentation by Maker
or any guarantor in connection with the Loan Documents or any other
documents delivered by Maker or any guarantor to Payee in connection
with the Loan;
(J) in the event the first full Monthly Installment on this Note
is not paid when due;
(K) in the event there shall occur any material breach or default
under the provisions of Section 9 of the Mortgage (entitled "Single
Purpose Entity/Separateness");
(L) Maker fails to obtain Payee's prior written consent to any
subordinate financing (except as permitted in Section 9(d) of the
Mortgage) or any other encumbrance on the Mortgaged Property, or any
transfer of the Mortgaged Property or director or indirect equity
interest in Maker in violation of Section 12 of the Mortgage; or
(M) the breach by Maker of any indemnification of Payee as set
forth in Section 19(c) of the Mortgage.
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13. Notices. All notices or other communications required or permitted to
be given pursuant hereto shall be given in the manner and be effective as
specified in the Mortgage, directed to the parties at their respective addresses
as provided therein.
14. Transfers of Note and Loan. Payee shall have the unrestricted right at
any time or from time to time to sell this Note and the Loan or participation
interests therein. Maker shall execute, acknowledge and deliver any and all
instruments requested by Payee to satisfy such purchasers or participants that
the unpaid indebtedness evidenced by this Note is outstanding upon the terms and
provisions set out in this Note and the other Loan Documents. To the extent, if
any specified in such assignment or participation, such assignee(s) or
participant(s) shall have the rights and benefits with respect to this Note and
the other Loan Documents as such assignee(s) or participant(s) would have if
they were the Payee hereunder.
15. Waiver of Trial By Jury; Waiver of Certain Claims. MAKER AND PAYEE
HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY,
AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT
SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS THAT A
PARTNERSHIP EXISTS BETWEEN PAYEE AND MAKER; (B) USURY OR PENALTIES OR DAMAGES
THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK
OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL
RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D)
ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE
FRAUD, MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR
NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR PROSPECTIVE
BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO
REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MAKER AND PAYEE, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE
ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
16. Authority. Maker (and the other undersigned representative of Maker, if
any) represents that Maker has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note, the Mortgage and the
other Loan Documents and that this Note, the Mortgage and the other Loan
Documents constitute valid and binding obligations of Maker.
17. Governing Law; Consent to Jurisdiction. This Note shall be governed and
construed in accordance with the laws of the state where the Mortgaged Property
is located, without regard to conflict of law provisions that would otherwise
require the application of the
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laws of another jurisdiction, and the applicable laws of the United States of
America. Maker hereby irrevocably submits to the jurisdiction of any court of
competent jurisdiction located in the state in which the Mortgaged Property is
located in connection with any proceeding relating to this Note.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Maker has duly executed this Note the day and year
first above written.
MAKER:
RAMCO JACKSONVILLE LLC, a Delaware
limited liability company
By: /s/ Richard J. Smith
------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
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EXHIBIT A
MORTGAGE SCHEDULE
Mortgage and Security Agreement dated June 30, 2005 made by RAMCO Jacksonville
LLC, to JPMorgan Chase Bank, NA to secure the principal sum of $58,772,375.00
and recorded on July 1, 2005 as Document Number 2005241139, Official Records
Book 12586 Page 500 in the public records of Duval County, Florida.
First Amendment to Mortgage and Security Agreement and First Amendment to
Assignment of Leases and Other Loan Documents dated January 31, 2007 made by
RAMCO Jacksonville LLC to JPMorgan Chase Bank, N.A. evidencing an increase of
$20,000,000.00 to the previous principal amount of $58,772,375.00 and recorded
on February 22, 2007 as Document Number 2007063996, Official Records Book 13829
Page 794 in the public records of Duval County, Florida.
Assignment of Mortgage dated the date hereof from JPMorgan Chase Bank, N.A. to
JPMorgan Chase Bank, N.A. assigning the mortgage described above, recorded in
the public records of Duval County, Florida.