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EXHIBIT 10.5
SECOND AMENDED AND RESTATED NOTE
$160,000,000.00 October 30, 1997
FOR VALUE RECEIVED, the undersigned RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership, hereby promises to pay to BANKBOSTON, N.A., a
national banking association, or order, in accordance with the terms of that
certain Second Amended and Restated Master Revolving Credit Agreement dated as
of October 30, 1997 (the "Credit Agreement"), as from time to time in effect,
among the undersigned, BankBoston, N.A., 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 One Hundred Sixty
Million and No/100 Dollars ($160,000,000.00), 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 BankBoston, N.A., as Agent for the
payee hereof, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
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
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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.
This Note is a note executed in amendment and restatement of the
"Notes" as such term is defined in the Prior Credit Agreement.
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.
By: Ramco-Xxxxxxxxxx Properties Trust, its
General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Title: President
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