1
EXHIBIT 10.39
Loan No: 158186
NOTE
$8,500,000.00
December 17,1997
FOR VALUE RECEIVED, the undersigned, RAMCO-XXXXXXXXXX PROPERTIES, LP.,
a Delaware limited partnership, whose address is 00000 Xxxxxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 ("Maker"), promises to pay to the order of
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, an Indiana corporation ("Holder"),
the principal sum of Eight Million Five Hundred Thousand Dollars and No Cents
($8,500,000.00), with interest from date as hereinafter provided, both principal
and interest payable c/o Lincoln Investment Management, Inc., 000 Xxxx Xxxxx
Xxxxxx, X. X. Box 2390, Fort Xxxxx, Indiana 46802, Attention Loan Servicing,
Financial Services, Loan No. 158156, or at such other place as the Holder of
this Note may designate from time to time.
1. As used in this Note, the term "Maker" shall include the successors
and assigns of the person or entity executing this Note, and the term "Holder"
and/or "Lender" shall include the successors and assigns of The Lincoln National
Life Insurance Company.
2. All payments, both of interest and principal, shall be paid in
lawful money of the United States.
3. Until directed otherwise in writing by the Holder, all payments
under this Note shall be made by Electronic Fund Transfer debit entries to the
Maker's account at an Automated Clearing House ("ACH") member bank. Each payment
shall be initiated by the Holder (or, at Holder's option, by its loan servicing
agent at no cost to Borrower) through the ACH Network for settlement on the
respective due dates. Prior to each payment due date, the Maker shall deposit
and/or maintain sufficient funds in its account to cover each debit entry.
Notwithstanding the foregoing, the failure, for whatever reason, of the
Electronic Funds Transfer debit entry transaction to be timely completed shall
not relieve the Maker from its obligations to promptly and timely make all
payments called for under this Note when due and to comply with Maker's other
obligations hereunder.
4. This obligation shall bear interest from the date hereof as the rate
of Seven and 17/100 percent (7.17%) per annum based on a 360-day year (the
"interest Rate") until maturity. Payments of interest from the date hereof
through the next occurring tenth (10th) day of the month shall be paid in
advance on the date hereof. Monthly installments of Sixty-six Thousand Seven
Hundred Seventy Dollars and Fifty-six Cents ($66,770.56) each shall become due
beginning on February 10, 1998, and a like sum on the tenth (10th) day of each
consecutive month thereafter (provided, however, in the event the tenth (10th)
day of the month is a Saturday, a Sunday, or a legal holiday, payment shall be
due on the immediately preceding business day). On January 10, 2006 (the
"Original Maturity Date"), the entire principal balance and accrued interest
then owing shall become immediately due and payable; it is acknowledged by
Maker, however, that the foregoing payments will not fully amortize the entire
principal sum payable hereunder and that, accordingly, the payment due on
January 10, 2006, will be a "balloon" payment which is substantially larger in
amount than those preceding the same. Each monthly payment shall be credited fir
toward sums other than interest and principal due Holder under this Note, the
Mortgage, or the Collateral Loan Documents (as hereinafter defined), then toward
all interest then due, and then, subject to any provisions hereof prohibiting,
restricting or conditioning prepayment of principal, any amounts remaining shall
be credited to reduce the amount of the principal then outstanding.
5. This Note is secured by a Mortgage (the "Mortgage") of even date
herewith, in favor of one or more mortgagees thereunder, for the benefit of
Xxxxxx, encumbering, among other things, certain real estate and other property
more particularly described in Exhibit A attached thereto and made a part
thereof (the "Premises"). This Note shall be governed by and construed in
accordance with the laws of Michigan.
6. At the option of the Holder of this Note, the entire principal
balance and accrued interest owing hereon shall at once become due and payable
without notice or demand upon the occurrence at any time of any of the following
events, (hereinafter sometimes referred to as a "Default") and continuance of
such Default beyond any period which cure is expressly permitted in this Note,
the Mortgage or the Collateral Loan Documents (as hereinafter defined):
(a) Default in the payment of installment of principal or
interest due hereunder on the date such payment shall be due and payable under
the terms of this Note or the failure to pay any other sum of money due under
this Note (time is of the essence of this Note), the Mortgage, or any other
agreement or instrument securing or pertaining g to this Note or the
indebtedness evidenced hereby, including but not limited to that certain Loan
Agreement of even date herewith by and between Maker and Holder and the
Commitment and the Environmental Indemnity Agreements (as defined in the Loan
Agreement) (such other agreements and instruments being collectively referred to
herein as the "Collateral Loan Documents"), on the date such sum of money is due
and payable;
(b) The occurrence of any Default, other than a Default under
Section (a) above, under this Note, the Mortgage, or any of the Collateral Loan
Documents; or
(c) The filing by or against the Maker of this Note, or any
guarantor or surety of the payment of the indebtedness evidenced by this Note,
of a proceeding in bankruptcy or arrangement or reorganization pursuant to the
Federal Bankruptcy Code or any similar law, federal or state, including but not
limited to:
(i) Maker or any guarantor or surety shall file a voluntary
petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall
file any petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Maker or any such guarantor or surety or of
all or any part of the Premises or of all or any of the royalties, revenues,
rents, issues or profits thereof, or shall make any general assignment for the
benefit of creditors, or shall admit in writing its inability to pay or shall
fail to pay its debts generally as they become due; or
(ii) A court of competent jurisdiction shall enter an
order, judgment or decree approving a petition filed against Maker or any
guarantor or surety seeking any reorganization, dissolution or similar relief
under any present or future federal, state or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for debtors, or Maker or any
guarantor or surety shall be the subject of an order for relief entered by such
a court, and such order, judgment or decree shall remain unvacated or unstayed
for an aggregate of sixty (60) days (whether or not consecutive) from the first
date of entry thereof, or any trustee, receiver, custodian or liquidator of
Maker or any guarantor or surety or of all or any part of the Premises
2
or of any or all of the royalties, revenues, rents, issues or profits thereof
shall be appointed without the consent or acquiescent of Maker or any such
guarantor or surety and such appointment shall remain unvacated and unstayed for
an aggregate of sixty (60) days (whether or not consecutive).
7. All installments of interest and the principal, or any portion
thereof, not paid when due, if permitted by applicable law, shall bear interest
at a rate equal to the lesser of four percent (4%) in excess of the Interest
Rate or the Highest Lawful Rate (as hereinafter defined) (the "Default Rate").
During the existence of any Default hereunder, under the Mortgage or under the
Collateral Loan Documents, the entire unpaid balance hereunder shall , at the
Holder hereof, bear interest at the Default Rate.
8. Except as may otherwise be expressly set forth herein, Maker
and all of the parties now or hereafter liable for payment hereof, whether as
guarantor, surety or otherwise, severally waive demand, presentment, notice of
dishonor, notice of Default, notice of intent to accelerate, diligence in
collecting, grace, notice and protest, and consent to all extensions which from
time to time may be granted by the Holder hereof and to all partial payments
hereon, whether before or after maturity.
9. Without prejudice to any other provision herein, if permitted
by applicable law the Holder hereof may collect a late charge equal to four
percent (4%) of any installment not paid under the terms of this Note and of any
payment to be made under the Mortgage or any of the Collateral Loan Documents
securing same if said installment or payment is not paid when due, to cover the
extra expense in handling delinquent payments; provided that such late charge
shall not, itself or together with other interest to be paid on the indebtedness
evidenced by this Note or indebtedness arising under the Mortgage or under the
Collateral Loan Documents, exceed the Highest Lawful Rate. Late charges shall
not be payable on installments or payments which would have fallen due after
acceleration upon Default, unless the Holder hereof later waives such
acceleration and accepts payment of all principal then due with accrued interest
at the Default Rate. Said fee or late charge shall be added to and become a part
of the next succeeding monthly payment as required hereunder, or , at Xxxxxx's
option, may be deducted from that portion of the installment applicable to the
reserve for future tax and insurance payments, if such a reserve is maintained,
or become part of the indebtedness evidenced by this Note. Said late charge
shall not apply to the payment due on the Original Maturity Date if such payment
is received no later than January 17, 2006.
10. If this Note is not paid when due, whether at maturity or by
acceleration, or if it is collected through a bankruptcy, probate or other court
proceeding, or if this note, the Mortgage, or any Collateral Loan Document is
otherwise placed in the hands of an attorney for collection or enforcement,
whether before or after maturity of this Note, or if Holder shall be made a
party to any litigation merely because of the existence of this Note, the
Mortgage, or any Collateral Loan Document, Maker agrees to pay all costs
incurred by Holder in connection with this Note, the Mortgage, or the Collateral
Loan Documents, including, but not limited to, reasonable attorneys' fees, and
all other costs and expenses associated with court and/or administrative
proceedings through the appellate level, costs of title search, environmental
assessments and studies, continuation of abstracts(s) and preparation of survey,
and costs incurred by reason of any action, a suit, proceeding, hearing, motion
or application before any court or administrative body in which the Holder may
be for become a party by reason of this Note, the Mortgage, or any Collateral
Loan Document, including but not limited to condemnation, bankruptcy, and
administrative proceedings, as well as any other of the foregoing where a proof
of claim is by law required to be filed, or in which it becomes necessary to
defend or uphold the terms of this Note, the Mortgage, or any Collateral Loan
Documents.
11. Regardless of any provision contained in this Note, the
Mortgage, or the Collateral Loan Documents, the Holder hereof shall never be
entitled to receive, collect or apply as interest on this Note, any amount in
excess of the Highest Lawful Rate (as hereinafter defined) and, in the event the
Holder hereof ever receives, collects or applies as interest any such excess,
such amount which would be excessive interest shall be deemed a partial
prepayment of principal and treated under this Note as such and such prepayment
shall not be subject to any prepayment premium; and, if the principal of this
Note is paid in full, any remaining excess shall forthwith be paid to Maker. In
furtherance of the foregoing, Holder and Maker stipulate and agree that none of
the terms and provisions contained in this Note, the Mortgage or any Collateral
Loan Document shall ever be construed to create a contract to pay interest at a
rate in excess of the Highest Lawful Rate. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the Highest
Lawful Rate, Maker and the Holder hereof shall, to the maximum extent permitted
under applicable law, (1) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest (ii) exclude voluntary prepayments and
the effects thereof, and (iii)amortize, prorate, allocate and spread, in equal
parts, the total amount of interest throughout the entire contemplated term of
this Note so that the interest rate is uniform throughout the entire term
thereof; provided that if this Note is paid and performed in full prior to the
end of the full contemplated term thereof, and if the interest received would
exceed the Highest Lawful Rate, then Holder shall refund to Maker the amount of
such excess or credit the amount of such excess against the principal of this
Note, and in such event, the Holder shall not be subject to any penalties
provided by law for contracting for, charging or receiving interest in excess of
the Highest Lawful Rate. "Highest Lawful Rate" shall mean the maximum rate of
interest which Holder hereof is allowed to contract for, charge, take reserve or
receive under applicable law after taking into account, to the extent required
by applicable law, any and all relevant payments or charges under this note, the
Mortgage, or any of the Collateral Loan Documents. The term "applicable law" as
used herein shall mean the laws of Michigan or the laws of the United States,
whichever laws allow the greater rate of interest, as such laws now exist or may
be changed or amended or come into effect in the future.
12. No prepayments of the indebtedness hereunder shall be
permitted, this Note being closed to prepayment, except as expressly permitted
in Exhibit A, Additional Provisions, Section A3.
13. Upon the occurrence of any Default under this Note, the
Mortgage, or the Collateral Loan Documents during any period when this Note is
closed to prepayment, and following the acceleration of maturity of the
indebtedness evidenced hereby as herein provided, if permitted by applicable
law, there shall be due and payable as a part of the indebtedness evidenced
hereby any amount equal to the greater (all as calculated by the Holder) of (i)
the present value (discounted at the Treasury Rate, as hereinafter defined) of
the excess (if any) obtained by subtracting the effective annual compounded
yield (at the time of such acceleration) of United States Treasury Issues (other
than so-called "flower bonds") with maturity dates that match, as closely as
possible, the Original Maturity Date (the "Treasury Rate") from the effective
annual compounded yield of this Note, multiplied by the outstanding principal
balance (at the time of acceleration), multiplied by the number of years (and
any fraction thereof) remaining between the date of acceleration and the
Original Maturity Date (such amount will be computed as if the amount determined
in accordance with the preceding sentence were paid in equal monthly
installments after the date of such acceleration through the Original Maturity
Date); or (ii) five percent (5%) of the outstanding principal balance (at the
time of acceleration) of this Note.
2
3
14. If there be more than one Maker of this Note, the obligations
of each Maker hereunder shall be joint and several.
15. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKER HEREBY
IRREVOCABLY SUBMITS TO PERSONAL JURISDICTION IN MICHIGAN AND OF THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT TO MICHIGAN FOR THE ENFORCEMENT
OF MAKER'S OBLIGATIONS HEREUNDER, UNDER THE MORTGAGE, AND THE COLLATERAL LOAN
DOCUMENTS (AS DEFINED IN THE MORTGAGE), AND WAIVES ANY AND ALL PERSONAL RIGHTS
UNDER THE LAW OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN MICHIGAN FOR
THE PURPOSE OF LITIGATION TO ENFORCE SUCH OBLIGATIONS. FURTHERMORE, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, MAKER HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS AND COMPLAINT OR OTHER PROCESS OF THE PAPERS ISSUED IN CONNECTION WITH
SUCH LITIGATION AND AGREES THAT SERVICE MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO THE MAKER AT THE ADDRESS SET FORTH HEREIN.
16. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKER HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND
OR NATURE, IN ANY COURT IN WHICH AN ACTION MAY BE COMMENCED, ARISING OUT OF OR
IN CONNECTION WITH THIS NOTE, THE MORTGAGE, ANY COLLATERAL LOAN DOCUMENT, OR ANY
OTHER MATTERS RELATED THERETO.
17. The terms, conditions and provisions of this Note are subject,
in all respects, to the additional provisions set forth on Exhibit A attached
and incorporated herein by this reference.
3
4
IN WITNESS WHEREOF, the undersigned have executed and delivered under
seal this Note as of the day and year first above written.
MAKER
Signed in the presence of: XXXXX-XXXXXXXXXX PROPERTIES, L.P. a
Delaware limited partnership
/s/ Xxxxxx Xxxxxxx
-------------------------------- By: Ramco-Gershenson
Printed Name: Xxxxxx Xxxxxxx Properties Trust, a
------------------- Massachusetts business
trust General Partner
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------- -----------------------
Printed Name: Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx
------------------ President
4
5
EXHIBIT A
ADDITIONAL PROVISIONS TO NOTE
Section A1. No Personal Liability for Debt. Notwithstanding any other provision
of this Note, the Mortgage, or the Collateral Loan Documents to the contrary,
except as provided in this Section A1, the execution of this Note shall impose
no personal liability on the Maker for payment of the indebtedness evidenced
hereby or secured by the Mortgage. Holder shall look only to the Premises and to
the rents, issues and profits thereof, and other collateral identified in the
Mortgage and the Collateral Loan Documents, and in the event of a Default will
not seek any deficiency or personal judgment against Maker except such judgment
or decree as may be necessary to foreclose and bar Maker's interests in the
Premises; provided, however, that nothing herein stated shall:
(a) release, impair or otherwise affect this Note, the Mortgage, or any
of the Collateral Loan Documents; nor
(b) impair or otherwise affect the validity or the lien of this Note,
the Mortgage, or any of the Collateral Loan Documents; nor
(c) impair the right of Holder to accelerate the maturity of this Note
(or to avail itself of any of its other rights and remedies) upon the
occurrence of a Default; nor
(d) relieve the Maker from personal liability for, nor impair the right
of the Holder to proceed against or recover from the Maker for any or
all of the following:
(i) failure by Maker to return tenant security deposits
and prepaid rents to tenants of the Premises as
required by the terms of such tenants' leases or
rental agreement or by Michigan law, or, in the event
Holder takes possession of the Premises upon Default
hereunder through foreclosure or prior to foreclosure
pursuant to the rights and remedies set forth in the
Mortgage, failure by Maker to deliver to Holder all
tenant security deposits and security deposits held
pursuant to tenant leases;
(ii) rents collected for more than one month in advance;
(iii) failure by Maker following Default to apply all
rents, issues and profits from the Premises to the
repayment of the indebtedness evidenced hereby or
secured by the Mortgage or to the normal operating
expenses of the Premises;
(iv) fraud or material breach of Maker's warranties or
representations;
(v) waste with respect to the Premises (or any part
thereof);
(vi) misappropriation or misapplication of insurance or
condemnation proceeds;
(vii) destruction of the Premises (or any part thereof) by
or from an uninsured or underinsured casualty or
event for which maker is required under the Mortgage
or any Collateral Loan Document to obtain insurance;
(viii) to the extent not escrowed in a manner acceptable to
Holder, or otherwise paid to or collected by Holder,
taxes levied on the Premises, including ad valorem
taxes and special improvement assessments, and
insurance premiums for the Premises.
(ix) any and all costs, expecting that of remedial action
for which the Maker had no obligation by virtue of
"grandfather" status, incurred in order to bring the
Premises into compliance with the accessibility
provisions of the Fair Housing Act of 1988 and the
Americans with Disabilities Act of 1990;
(x) any expense, damage, loss or liability (1) arising
from or with respect to the breach of the warranties
contained in this Note, the Mortgage, or the
Collateral Loan Documents in connection with
environmental matters, or (2) arising from or with
respect to the indemnity contained in the
Environmental Indemnity Agreements or with respect to
any other indemnification relating to environmental
matters;
(xi) seizure or forfeiture of the Premises, any portion
thereof, or Maker's interest therein, pursuant to any
federal, state or local criminal law, including but
not limited to racketeering, income tax evasion or
illegal drugs;
(xii) any violation of the ERISA covenants contained in
Section 2.05(b) of the Mortgage; and
(xiii) all amounts due under the $500,000.00 Letter of
Credit to be supplied by Maker, as provided in the
Loan Agreement, if said Letter of Credit is not
timely renewed, as provided in the Loan Agreement, or
if the Letter of Credit is dishonored or Holder is
unable to draw the full amount thereof for any
reason.
5
6
Furthermore, Maker shall remain personally liable for and indemnify
Holder with respect to any loss in connection with the foregoing items,
together with any costs incurred by Holder in connection with the
foregoing items, including, but not limited to, reasonable attorneys'
fees, all costs and expenses associated with court and/or
administrative proceedings through the appellate level, costs of
environmental assessments and studies, costs incurred by reason of any
action, suit, proceeding, hearing, motion or application before any
court or administrative body in which the Holder may be or become a
party by reason thereof including, but not limited to, condemnation,
bankruptcy and administrative proceedings, as well as any other
proceeding where a proof of claim is by law required to be filed, or in
which it becomes necessary to defend or uphold the terms of this Note,
the Mortgage, or any Collateral Loan Documents, as they relate to any
of the foregoing items. Holder may recover from Maker only once for any
single loss, liability or expense occasioned by any of the events
described in clauses (i) through (xiii) above and such right of
recovery shall not convert the indebtedness evidenced hereby to a
recourse obligation.
Section A2. No Default if Malfunction. Holder shall not declare a Default
if Holder does not receive Maker's monthly principal and interest payment on the
date the same is due if the nonpayment is due either to a malfunction in the
Electronic Fund Transfer ("EFT") system or failure by Holder or initiate such
EFT. Notwithstanding the previous sentence the failure, for whatever reason, of
the EFT debit entry transaction to be timely completed shall not relieve Maker
from its obligation to make all payments when due under this Note or from
Maker's other obligations hereunder.
Section A3. Prepayment. The following shall be inserted at the end of
Section 12 of the Note:
Notwithstanding the prohibition of prepayment set forth in this Note,
the Mortgage, or any Collateral Loan Document, the following shall apply:
Effective on February 10, 2000, the privilege is reserved to
make full prepayment of principal, interest and all costs and expenses payable
under this Note, the Mortgage, and the Collateral Loan Documents, on the tenth
(10th) day of any month upon payment to the Holder of a premium on the principal
amount so prepaid, which prepayment premium shall be equal to the greater (all
as calculated by Holder) of:
a) The present value (discounted at the Treasury Rate as
hereinafter defined) of the excess (if any) obtain by subtracting the
effective annual compounded yield (at the time of prepayment) of United
States Treasury Issues (other than so-called "flower bonds") with
maturity dates that match, as closely as possible, the Original
Maturity Date (the "Treasury Rate") from the effective annual
compounded yield of this Note plus fifty (50) basis points, multiplied
by the outstanding principal balance (at the time of prepayment) of
this Note, multiplied by the number of years (and any fraction thereof)
remaining between the date of prepayment and the Original Maturity Date
(such amount shall be computed as if the amount determined in
accordance with the provisions of this subsection were paid in equal
monthly installments after the date of such prepayment through the
Original Maturity Date); or
b) One percent (1%) of the outstanding principal balance (at the
time of prepayment) of this Note.
If the Maker so elects to make full prepayment of the indebtedness hereunder, it
shall give not less than sixty (60) days prior written notice to that effect to
the Holder by registered or certified mail, directed to this address: c/o
Lincoln Investment Management, Inc., 000 Xxxx Xxxxx Xxxxxx, X.X. Box 2390, Fort
Xxxxx, Indiana 46802. Attention: Loan Servicing, Financial Services, Loan No.
158156. The foregoing premium shall also apply and be payable in the event of
any acceleration by Holder of the indebtedness evidenced by this Note when
otherwise open to prepayment, as provided above.
Commencing on October 10, 2005, and continuing through the
Original Maturity Date, prepayment may be made without prepayment premium.
Section A4. Reamortization. Upon (a) any prepayment of principal permitted
under Section B7 or B11 of the Mortgage; or (b) upon any application of
insurance proceeds or eminent domain awards to repayment of principal as
provided in the Loan Agreement. Xxxxx agrees to adjust the monthly payments due
hereunder at the Interest Rate based on the Mortgage balance existing after
prepayment, using an amortization of twenty-five (25) years minus the number of
years and/or portions of years that have elapsed under this Note after August
17, 1998, but prior to such prepayment.
Section A5. Non-Recourse as to Trustees. All persons having any claim
hereunder against the Xxxxx-Xxxxxxxxxx Properties Trust (the "Trust"), general
partner of the Maker, or in connection with any matter that is the subject
hereof shall look solely to the trust assets of the Trust, and in no event shall
such obligations of the Trust be enforceable against any shareholder, trustee,
officer, employee or agent of the Trust personally.
6
7
This Exhibit shall not be binding, and shall have no force and effect, unless
executed by the Maker below:
Signed in the presence of: RAMCO-GERSHENSON PROPERTIES, L.P. a
Delaware limited partnership
/s/ Xxxxxx Xxxxxxx
-----------------------------------
By: Xxxxx-Xxxxxxxxxx Properties
Printed Name: Xxxxxx Xxxxxxx Trust, a Massachusetts
---------------------- business trust General
Partner
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------- ------------------------
Printed Name: Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
---------------------- President
7
