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EXHIBIT 10.37
PROMISSORY NOTE
$50,000,000.00 New York, New York
November 26, 1997
FOR VALUE RECEIVED, RAMCO PROPERTIES ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership, as maker, having its principal
place of business at 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000 ("BORROWER"), hereby unconditionally promises to pay to the order of
XXXXXX FINANCIAL CORPORATION, as lender, having an address at 0 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 ("LENDER"), or at such other place
as the holder hereof may from time to time designate in writing, the principal
sum of FIFTY MILLION AND NO/100 DOLLARS ($50,000,000.00) advanced pursuant to
that certain Loan Agreement dated as of the date hereof between Borrower and
Lender (the "LOAN AGREEMENT"), in lawful money of the United States of America
with interest thereon to be computed from the date of this Note at the
Applicable Interest Rate, and to be paid in accordance with the terms of this
Note and the Loan Agreement. All capitalized terms not defined herein shall have
the respective meanings set forth in the Loan Agreement.
1. Xxxxx agrees to pay the principal sum of this Note and
interest on the unpaid principal sum of this Note from time to time outstanding
at the rates and at the times specified in the Loan Agreement and the
outstanding balance of the principal sum of this Note and all accrued and unpaid
interest thereon shall be due and payable on the Maturity Date.
2. Except as otherwise provided in the Loan Agreement, the
Debt shall without notice become immediately due and payable at the option of
Lender if any payment required in this Note is not paid prior to the date when
due or if not paid on the Maturity Date or on the happening of any other Event
of Default.
3. This Note is secured by the Mortgages and the other Loan
Documents. All of the terms, covenants and conditions contained in the Loan
Agreement, the Mortgages 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 of a conflict or inconsistency between the terms of
this Note and the Loan Agreement, the terms and provisions of the Loan Agreement
shall govern.
4. Notwithstanding anything to the contrary, (a) all
agreements and communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account all amounts deemed
interest, the interest contracted for, charged or received by Lender shall never
exceed the maximum lawful rate or amount, (b) in calculating whether any
interest exceeds the lawful maximum, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender, and (c) if through any contingency or event,
Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of Borrower to
Lender, or if there is no such indebtedness, shall immediately be returned to
Borrower.
5. 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 Borrower or
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Lender, 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.
6. Except as otherwise provided in the Loan Agreement,
Borrower 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, notice of intention to accelerate, notice of acceleration, protest
and notice of protest and non-payment and all other notices of any kind. 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 Loan Agreement or the other Loan Documents made by
agreement between Lender or any other Person shall release, modify, amend,
waive, extend, change, discharge, terminate or affect the liability of Borrower,
and any other Person who may become liable for the payment of all or any part of
the Debt, under this Note, the Loan Agreement or the other Loan Documents. No
notice to or demand on Borrower shall be deemed to be a waiver of the obligation
of Borrower or of the right of Lender to take further action without further
notice or demand as provided for in this Note, the Loan Agreement or the other
Loan Documents. If Borrower is a partnership, the agreements herein contained
shall remain in force and applicable, notwithstanding any changes in the
individuals comprising the partnership, and the term "Borrower," as used herein,
shall include any alternate or successor partnership, but any predecessor
partnership and their partners shall not thereby be released from any liability.
If Borrower is a corporation, the agreements contained herein shall remain in
full force and applicable notwithstanding any changes in the shareholders
comprising, or the officers and directors relating to, the corporation, and the
term "Borrower" as used herein, shall include any alternative or successor
corporation, but any predecessor corporation shall not be relieved of liability
hereunder. (Nothing in the foregoing sentence shall be construed as a consent
to, or a waiver of, any prohibition or restriction on transfers of interests in
such partnership which may be set forth in the Loan Agreement, the Mortgages or
any other Loan Document.)
7. Upon the transfer of this Note, Borrower hereby waiving
notice of any such transfer, Lender may deliver all the collateral mortgaged,
granted, pledged or assigned pursuant to the Loan Documents, or any part
thereof, to the transferee who shall thereupon become vested with all the rights
herein or under applicable law given to Lender with respect thereto, and Lender
shall thereafter forever be relieved and fully discharged from any liability or
responsibility in the matter; but Lender shall retain all rights hereby given to
it with respect to any liabilities and the collateral not so transferred.
8. The provisions of Section 9.23 of the Loan Agreement are
hereby incorporated by reference into this Note to the same extent and with the
same force as if fully set forth herein.
9. (A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND
MADE BY XXXXXX AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE
PROCEEDS OF THIS NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE
PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT
LIMITING
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THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY LEGAL SUIT,
ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO
THIS NOTE MAY AT LENDER'S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN
THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY
NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. XXXXXXXX DOES
HEREBY DESIGNATE AND APPOINT XXXXXX XXXXXXXXX , ESQ. C/O MIRO, XXXXXX & XXXXXX,
32ND FLOOR, 000 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS AUTHORIZED AGENT
TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY
BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT
IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT
SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER
IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE
OF PROCESS UPON BORROWER, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF
NEW YORK. XXXXXXXX (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS
OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME
DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK
(WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS
FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF
ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS
DISSOLVED WITHOUT LEAVING A SUCCESSOR. SOLELY AS A COURTESY TO BORROWER, XXXXXX
WILL USE REASONABLE EFFORTS TO DELIVER A COPY OF ANY PROCESS SERVED UPON SAID
AGENT AT XXXXXXXX'S ADDRESSES SET FORTH IN SECTION 10.6 OF THE LOAN AGREEMENT,
PROVIDED THAT ANY FAILURE ON THE PART OF LENDER TO SO DELIVER ANY SUCH COPY
SHALL IN NO MANNER LIMIT THE EFFECTIVENESS OF ANY PROCESS SERVED UPON SAID
AGENT.
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10. All notices or other written communications hereunder
shall be delivered in accordance with Section 9.6 of the Loan Agreement.
IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note as of
the day and year first above written.
BORROWER:
RAMCO PROPERTIES ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: Ramco Properties GP, L.L.C.,
a Michigan limited liability
company
By: Ramco SPC, Inc.,
a Michigan corporation,
managing member
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, President
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