EXHIBIT 10.49
FOURTH AMENDED AND RESTATED NOTE
$35,000,000.00 December 30, 2002
FOR VALUE RECEIVED, the undersigned RAMCO-XXXXXXXXXX PROPERTIES, L.P., a
Delaware limited partnership, hereby promises to pay to FLEET NATIONAL BANK, a
national banking association, or order, in accordance with the terms of that
certain Fourth Amended and Restated Master Revolving Credit Agreement dated as
of December 30, 2002 (the "Credit Agreement"), as from time to time in effect,
among the undersigned, Fleet National Bank, for itself and as Agent, and such
other Banks as may be from time to time named therein, to the extent not sooner
paid, on or before the Maturity Date, the principal sum of THIRTY-FIVE MILLION
AND NO/100 DOLLARS ($35,000,000.00), or such amount as may be advanced by the
payee hereof under the Credit Agreement with daily interest from the date
hereof, computed as provided in the Credit Agreement, on the principal amount
hereof from time to time unpaid, at a rate per annum on each portion of the
principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Credit Agreement, and with
interest on overdue principal and, to the extent permitted by applicable law, on
overdue installments of interest and late charges at the rates provided in the
Credit Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to Fleet National Bank, as Agent for the
payee hereof, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or such other
address as may be designated by Agent.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Borrower and the Banks and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Banks exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Banks in excess of the maximum lawful amount, the interest payable to the
Banks shall be reduced to the maximum amount permitted under applicable law; and
if from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
principal balance of the Obligations of the undersigned Borrower and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations of the undersigned Borrower, such excess shall be
refunded to the undersigned Borrower. All interest
paid or agreed to be paid to the Banks shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal of the Obligations of the
undersigned Borrower (including the period of any renewal or extension thereof)
so that the interest thereon for such full period shall not exceed the maximum
amount permitted by applicable law. This paragraph shall control all agreements
between the undersigned Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement. In addition to and not in limitation
of the foregoing and the provisions of the Credit Agreement hereinabove defined,
the undersigned further agrees, subject only to any limitation imposed by
applicable law, to pay all expenses, including reasonable attorneys' fees and
legal expenses, incurred by the holder of this Note in endeavoring to collect
any amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise.
This Note shall be governed by and construed in accordance with the laws
of the State of Michigan (without giving effect to the conflict of laws
rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
Recourse to the general partner of the Borrower shall be limited as
provided in Section 32 of the Credit Agreement.
This Note is a note executed in amendment and restatement of the "Notes"
as such term is defined in the Prior Credit Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF the undersigned has by its duly authorized officers,
executed this Note under seal as of the day and year first above written.
RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Xxxxxxxxxx Properties Trust, a
Maryland real estate investment
trust, its General Partner
By:_________________________________
Title:___________________________
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