EXHIBIT 10.21
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FORM OF REVOLVING NOTE
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PROMISSORY NOTE
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$ July , 1998
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FOR VALUE RECEIVED, the undersigned, MONARCH PROPERTIES, LP, a Delaware
limited partnership ("Borrower") promises to pay to the order of [Name of
Lender] (the "Lender"), the lesser of the principal sum of [XXXXXX'S COMMITMENT]
($____________), or so much thereof as may have been advanced by Lender from
time to time, and not repaid, on the dates and at the time set forth in the
Credit Agreement, together with interest on the unpaid principal amount of this
Note on the dates and at the rate or rates provided for in the Credit Agreement.
All payments of principal and interest shall be made in lawful money of the
United States in immediately available funds at the office of SouthTrust Bank,
National Association, as Agent, 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000, Attention: Specialized Health Care Lending, or at such other place or
places and to such account or accounts as the Agent may direct from time to time
by notice to the Borrower in accordance with the Credit Agreement.
This Note is one of the Revolving Notes referred to in and is issued
pursuant to the Credit Agreement dated July , 1998, by and among the Borrower,
MP Operating, Inc. and Monarch Properties, Inc., as Guarantors, SouthTrust Bank,
National Association, as Agent, and the lenders parties thereto as Lenders (as
the same may be amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"). Reference is hereby made to the Credit Agreement for a
statement of the terms and conditions governing this Note, including those
related to voluntary and mandatory prepayment of this Note and acceleration of
the maturity hereof. Capitalized terms used in this Note and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
The date and amount of, and the Interest Period for, each type of Loan
(i.e., Floating Rate or LIBOR Rate Loan), evidenced by this Note, each payment
and prepayment made on account of principal of each such Loan and each payment
of interest on each such Loan shall be recorded by Lender on its books, and such
books shall be presumed to be correct and accurate absent manifest error.
Failure by Xxxxxx to make such recordation shall not affect the obligations of
Borrower to make a payment when due of any amount owing hereunder.
In no event shall the amount of interest due or payable hereunder
(including interest calculated at the Default Rate) exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently paid by Borrower or inadvertently received by Lender or Agent,
then such excess sum shall be credited as a payment of principal, unless Lender
elects to have such excess sum refunded to Borrower forthwith, which refund
Borrower hereby agrees to accept. It is
the express intent hereof that Borrower not pay and Lender or Agent not receive,
directly or indirectly, interest in excess of that which may be legally paid by
Borrower under applicable law.
With respect to the amounts due under this Note, Borrower waives the
following to the fullest extent permitted by law:
(1) All rights of exemption of property from levy or sale
under execution or other process for the collection of debts under the
Constitution or laws of the United States or any state thereof;
(2) Demand, presentment, protest, notice of dishonor, notice
of non-payment, diligence in collection, and all other requirements
necessary to charge or hold the Borrower liable on any obligations
hereunder; and
(3) Any further receipt for or acknowledgment of any
collateral now or hereafter deposited as security for the obligations
hereunder.
Lender shall not by any act, delay, omission, or otherwise be deemed to
have waived any of its rights or remedies hereunder, and no waiver of any kind
shall be valid unless in writing and signed by Xxxxxx. All rights and remedies
of Lender under the terms of this Note and applicable statutes or rules of law
shall be cumulative and may be exercised successively or concurrently. Xxxxxxxx
agrees that, as of the date hereof, and as of the date of each Advance, there
are no defenses, equities, or setoffs with respect to the obligations set forth
herein.
The obligations of Borrower hereunder shall be binding upon and
enforceable against Xxxxxxxx and its successors and assigns, and shall inure to
the benefit of Lender and its successors and assigns.
Any provision in this Note which may be unenforceable or invalid under
any law shall be ineffective to the extent of such unenforceability or
invalidity without affecting the enforceability or validity of any other
provision hereof.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF ALABAMA. BORROWER ACKNOWLEDGES THAT THIS NOTE IS BEING HELD
IN THE STATE OF ALABAMA AND THAT BORROWER HAS SUFFICIENT MINIMUM CONTACTS WITH
THE STATE OF ALABAMA FOR PURPOSES OF CONFERRING JURISDICTION ON THE FEDERAL AND
STATE COURTS PRESIDING IN JEFFERSON COUNTY, ALABAMA, AND BORROWER CONSENTS TO
THE JURISDICTION OF SUCH FEDERAL AND STATE COURTS IN ANY ACTION INVOLVING THE
RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER PURSUANT TO THIS NOTE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY WAIVES ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR
CAUSE OF ACTION (I) ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS
NOTE OR THE INDEBTEDNESS
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EVIDENCED HEREBY, OR (II) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO
OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS NOTE OR
THE INDEBTEDNESS EVIDENCED HEREBY OR IN CONNECTION WITH THE TRANSACTIONS RELATED
THERETO OR CONTEMPLATED THEREBY OR THE EXERCISE OF ANY PARTY'S RIGHTS AND
REMEDIES THEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. XXXXXXXX
AGREES THAT XXXXXX MAY FILE A COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF BORROWER
IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY, AND THAT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN
BORROWER AND XXXXXX SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION
BY A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the undersigned Xxxxxxxx has caused this instrument
to be properly executed and delivered as of the day and year first above
written.
MONARCH PROPERTIES, LP,
a Delaware limited partnership
By: MP Operating, Inc.,
a Delaware corporation
By:
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Xxxxxxx Xxxxxxx
Its Chief Financial Officer
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