sui_promissorynote03012011.htm


 




  





  








PROMISSORY NOTE






$115,000,000.00 


New York, New York

March 1, 2011










 


 


 


FOR VALUE RECEIVED, (i) SUN SIESTA BAY LLC, a Michigan limited liability company (“Siesta Bay”), (ii) SUN PHEASANT RIDGE LIMITED PARTNERSHIP, a Michigan limited partnership (“Pheasant Ridge”), (iii) SUN/YORK L.L.C., a Michigan limited liability company (“York”), (iv) SUN RICHMOND LLC, a Michigan limited liability company (“Richmond”), (v) SUN GROVES LLC, a Michigan limited liability company (“Groves”), (vi) SUN LAKE JULIANA LLC, a Michigan limited liability company (“Lake Juliana”), (vii) SUN LAKE SAN MARINO LLC, a Michigan limited liability company (“San Marino”), (viii) SUN CANDLELIGHT VILLAGE LLC, a Michigan limited liability company (“Candlelight Village”), (ix) SUN SOUTHFORK LLC, a Michigan limited liability company (“Southfork”), (x) SUN FOUR SEASONS LLC, a Michigan limited liability company (“Four Seasons”), and (xi) SUN LAFAYETTE PLACE LLC, a Michigan limited liability company (“Lafayette Place”), each having its principal place of business at c/o Sun Communities, Inc., 27777 Franklin Road, Suite 200, Southfield, Michigan 48034 (together with their successors and permitted assigns, (Siesta Bay, Pheasant Ridge, York, Richmond, Groves, Lake Juliana, San Marino, Candlelight Village, Southfork, Four Seasons and Lafayette Place are hereinafter referred to individually as a “Borrower” or collectively, as “Borrower” or “Borrowers” as the context may require), hereby unconditionally promises to pay to the order of JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a banking association chartered under the laws of the United States of America, as payee, having an address at 383 Madison Avenue, New York, New York 10179 (together with its successors and assigns, “Lender”), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of One Hundred Fifteen Million and No/100 Dollars ($115,000,000.00), in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated the date hereof, between Borrower and Lender (as the same may hereafter be amended, restated, replaced, supplemented, renewed, extended or otherwise modified from time to time, the “Loan Agreement”).  All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.


 


ARTICLE 1:  PAYMENT TERMS


 


Borrower 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 Article II of 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.


 






  





  











  









ARTICLE 2:  DEFAULT AND ACCELERATION


 




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 on or prior to the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.


 


ARTICLE 3:  LOAN DOCUMENTS


 


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.


 


ARTICLE 4:  SAVINGS CLAUSE


 


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 Legal Rate, (b) in calculating whether any interest exceeds the Maximum Legal Rate, 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 Maximum Legal Rate, 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.


 


ARTICLE 5:  NO ORAL CHANGE


 


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 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.


 


ARTICLE 6:  WAIVERS


 


    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


 







 




  





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Borrower is a partnership, the agreements herein contained shall remain in force and be applicable, notwithstanding any changes in the individuals or entities 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 any Borrower is a limited liability company, the agreements herein contained shall remain in force and be applicable, notwithstanding any changes in the members comprising the limited liability company, and the term “Borrower” as used herein, shall include any alternate or successor limited liability company, but any predecessor limited liability company and their members shall not thereby be released from any liability.  (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, corporation or limited liability company which may be set forth in the Loan Agreement, the Mortgages or any other Loan Document.)


 


ARTICLE 7:  TRANSFER


 


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.


 


ARTICLE 8:  EXCULPATION


 


The provisions of Section 9.3 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.


 


ARTICLE 9:  GOVERNING LAW


 


(A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER 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 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


 







 




  





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STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 


(B) 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.  BORROWER DOES HEREBY DESIGNATE AND APPOINT:


 


Bradley M. Dock


Fried, Frank, Harris, Shriver & Jacobson LLP


One New York Plaza


New York, New York  10004


 


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.  BORROWER (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.


 


ARTICLE 10:  NOTICES


 


All notices or other written communications hereunder shall be delivered in accordance with Section 10.6 of the Loan Agreement.


 


ARTICLE 11:  JOINT AND SEVERAL


 


If more than one Person has executed this Note as “Borrower”, the obligations of all such Persons hereunder shall be joint and several.


 


 


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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.


 


    BORROWERS:


 


SUN SIESTA BAY LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 13, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President







SUN PHEASANT RIDGE LIMITED PARTNERSHIP, a Michigan limited partnership








	
  

	
By:

	
SUN QRS POOL 2, INC., a Michigan corporation, its General Partner

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












SUN/YORK L.L.C., a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 2, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












Promissory Note




  





  











  








SUN RICHMOND LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 2, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












SUN GROVES LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 2, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












SUN LAKE JULIANA LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 4, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












SUN LAKE SAN MARINO LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 4, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President







Promissory Note




  





  











  








SUN CANDLELIGHT VILLAGE LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 13, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












SUN SOUTHFORK LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 4, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President







SUN FOUR SEASONS LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 4, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












SUN LAFAYETTE PLACE LLC, a Michigan limited liability company








	
  

	
By:

	
SUN QRS POOL 4, INC., a Michigan corporation, its Manager

















By:              /s/ Jonathan M. Colman                                                      


Name:  Jonathan M. Colman


Title:  Executive Vice President












Promissory Note