LINE OF CREDIT NOTE
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$15,000,000.00 Birmingham, Alabama February 18, 2000
FOR VALUE RECEIVED, the undersigned SUBURBAN LODGES OF AMERICA,
INC., a Georgia corporation, SUBURBAN HOLDINGS, L.P., a Georgia limited
partnership and SUBURBAN CONSTRUCTION, INC., a Georgia corporation
(hereinafter collectively referred to as "Maker"), jointly and severally
promise to pay to the order of SOUTHTRUST BANK, N.A. (hereinafter referred
to as "Payee," Payee together with any subsequent Holder(s) hereof,
hereinafter collectively referred to as "Holder"), at the office of Payee
at 0000 XxxxxXxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or at such
other place as Holder may designate to Maker in writing from time to time,
the principal sum of Fifteen Million and No/100 Dollars ($15,000,000.00),
together with interest thereon or on so much thereof as is from time to
time outstanding and unpaid (the "Note"), at the rate hereinafter set
forth, in lawful money of the United States of America, which shall, at
the time of payment, be legal tender in payment of all debts and dues,
public and private, such principal and interest to be paid in the
following manner, to-wit:
From and after the date hereof (until maturity or Default as
hereinafter provided), interest shall accrue hereunder at the rate per
annum equal to either (a) the "Adjusted LIBOR Rate," which is the sum of
two hundred seventy-five (275) basis points (one hundred [100] basis
points equals one percent (1%) plus the "LIBOR Rate" and shall be computed
on the daily outstanding principal balance hereunder based on a three
hundred sixty (360) day year, or (b) the "base rate" currently quoted from
time to time by Xxxxx as Xxxxx's "Base Rate." "LIBOR Rate," as used
herein, means a per annum rate of interest (rounded upwards, if necessary,
to the nearest 1/16 of 1%) equal to the quotient of (i) the "London
Interbank Offered Rate (LIBOR)" for contracts with a maturity date equal
to the "Selected LIBOR Period," as quoted in the MONEY RATES section of
The Wall Street Journal as effective for contracts entered into two (2)
business days prior to the first day of the Applicable Interest Period,
divided by (ii) 1.00 minus any reserve requirement applicable to
"eurodollar loans" (as such term is defined in Regulation D) for the
applicable Selected LIBOR Period (expressed as a decimal). An "Applicable
Interest Period" shall mean either a "Selected Base Period" or a "Selected
LIBOR Period," as herein defined. A "Selected LIBOR Period" shall mean one
(1) of the following periods of time selected by Borrower in its Interest
Rate Notice, as hereafter provided: thirty (30), sixty (60), ninety (90),
one hundred twenty (120), or one hundred eighty (180) days, but in no
event shall such period extend beyond the Maturity Date. The Adjusted
LIBOR Rate for the Selected LIBOR Period shall apply for the duration of
such Selected LIBOR Period, except as hereinafter provided. A "Selected
Base Period" shall mean a period of time selected by Borrower (or
otherwise applicable as hereinafter provided) in its Interest Rate Notice
during which the Base Rate is to apply.
All capitalized terms set forth herein shall have the same
meanings ascribed to them in the Loan Agreement (as herein defined) unless
otherwise herein defined.
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NOTE: FLORIDA DOCUMENTARY STAMP TAX IN THE AMOUNT OF $12,915.00 AND
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FLORIDA NONRECURRING INTANGIBLE TAX IN THE AMOUNT OF $3,649.26 WERE PAID
UPON THE RECORDING IN THE PUBLIC RECORDS OF PINELLAS, COUNTY, FLORIDA, OF
THAT CERTAIN MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT OF EVEN
DATE HEREWITH GIVEN BY SUBURBAN HOLDINGS, L.P., A GEORGIA LIMITED
PARTNERSHIP IN FAVOR OF SOUTHTRUST BANK, N.A.
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All amounts outstanding on the date of this Note shall accrue
interest at a rate per annum equal to the Base Rate. Commencing on the
last day of the Initial Interest Period, and continuing thereafter, or for
each Applicable Interest Period, as the case may be, while any portion of
this Note remains outstanding, Maker shall have the option to elect to
have interest on the entire outstanding principal balance accrue at a per
annum interest rate equal to either the Adjusted LIBOR or the Base Rate.
Such election shall be made by Maker giving Holder prior written or
telecopied notice (or telephonic notice promptly confirmed in writing or
by telecopy) of Maker's interest rate election and Applicable Interest
Period (an "Interest Rate Notice"), such Interest Rate Notice to be given
to Holder not later than 11:00 A.M. (Eastern Time) on the day of such
requested Line of Credit Loan for Domestic Loans, and (ii) 11:00 A.M.
(Eastern Time) three (3) Business Days prior to the day upon which the
Line of Credit Loan is requested by Maker to be funded for Eurodollar
Loans. Maker shall be deemed to have elected to have interest on the
entire outstanding principal balance of this Note accrue at the Base Rate
during the ensuing Applicable Interest Period. Each Interest Rate Notice
shall be given by Maker's Chief Executive Officer, Chief Financial
Officer, Treasurer, or such other person who may be expressly and
specifically designated in writing by any of such persons at such time to
be a representative of Maker with authority to give Interest Rate Notices
on behalf of Maker. Holder shall have no liability to Maker for refusing
to honor any Interest Rate Notice given by any person who Holder is not
reasonably satisfied is so authorized to give any such notice. If Maker
fails to give notice, it shall be deemed to have selected the Base Rate
for the Applicable Interest Period.
If the Base Rate increases or decreases at any time or from time
to time during which the Base Rate is in effect, then the rate of interest
hereunder shall be correspondingly increased or decreased effective on the
day on which such increase or decrease of such Base Rate becomes
effective. If the Adjusted LIBOR Rate is in effect, it shall be initially
calculated on the date it becomes effective and shall be recalculated by
Holder prior to the commencement of a subsequent Selected LIBOR Period
elected by Borrower in an Interest Rate Notice. If the recalculation date
falls on a date upon which Payee is not open for business, the
recalculation shall occur on the next business day on which Payee is open
for business. Interest so computed shall accrue for each and every day
(365 days per year for Base Rate borrowings, and 360 days per year for
LIBOR Rate borrowings) on which any indebtedness remains outstanding
hereunder, including the day on which funds are initially advanced
regardless of the time of day such advance is made, and including the day
on which funds are repaid unless repayment is credited prior to 2:00 p.m.,
the close of Payee's business day.
Interest on the outstanding principal amount hereunder shall be
payable in such amounts and at such times as more specifically set forth
in the Loan Agreement, up to and including the 31st day of January, 2003
(the "Maturity Date"), at which time a balloon payment equal to the entire
unpaid balance of principal and interest will be due and payable in full.
Monthly payments received by Xxxxxx on or prior to the fifth (5th) day
following the first (1st) day of each month shall not be considered late
payments constituting a Default hereunder (or hereinafter defined).
Maker xxxxxx agrees to pay immediately, upon demand by Xxxxxx, a
late charge equal to five percent (5%) of any payment due hereunder if
such payment is not made on or before the tenth (10th) day following the
due date applicable to such payment.
In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the
event any such payment is inadvertently paid by Maker or inadvertently
received by Xxxxxx, then such excess sum shall be credited as payment of
principal, unless Maker shall notify Holder, in writing, that Maker elects
to have such excess sum returned to it forthwith. It is the express intent
hereof that Maker not pay and Holder not receive, directly or indirectly
in any manner whatsoever, interest in excess of that which may be legally
paid by Maker under applicable law.
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It is hereby expressly agreed that should any default be made in
the payment of principal or interest as stipulated above, or should any
Event of Default (as defined therein) be made in the performance of any of
the covenants or conditions contained in the "Loan Documents" (as that
term is hereinafter defined), or any of them (hereinafter referred to as a
"Default"), then, in such event, the principal indebtedness evidenced
hereby, and any other sums advanced hereunder or under the Loan Documents,
or any of them, together with all unpaid interest accrued thereon, shall,
at the option of Holder and without further notice to Maker, become due
and payable and may be collected forthwith, regardless of the stipulated
date of maturity. Interest shall accrue on the outstanding principal
balance of this Note from the date of any Default hereunder and for so
long as such Default continues, regardless of whether or not there has
been an acceleration of the indebtedness evidenced hereby as set forth
herein, at the rate per annum that is two (2) percentage points in excess
of the rate that would have accrued hereunder had such Default not
occurred, which amount shall be compounded on a monthly basis until such
Default has been cured. All such interest shall be paid at the time of and
as a condition precedent to the curing of any such Default. In addition
to, and not in lieu of, any and all rights and remedies available to
Holder, as of the fifth (5th) day of any month during the term of this
Note, or any extension thereof, Holder shall have the right to disburse
proceeds of the loan to itself sufficient to pay accrued interest due but
not otherwise having been paid by Maker.
It is contemplated that the principal indebtedness evidenced by
this Note may be reduced or extinguished from time to time and that
additional advances to be evidenced by this Note may be made in the
future. Borrower may prepay this Note in whole or in part at any time
without penalty or premium except as more specifically set forth in the
Loan Agreement, but each such prepayment shall be applied, first, to
unpaid interest accrued through the date of such prepayment, and then to
principal.
Time is of the essence of this Note. In the event this Note, or
any part thereof, is collected by or through an attorney at law, Xxxxx
agrees to pay all costs of collection, including, but not limited to,
reasonable attorney's fees actually incurred.
Presentment for payment, demand, protest, and notice of demand,
protest and non-payment are hereby waived by Maker. No failure to
accelerate the debt evidenced hereby by reason of default hereunder,
acceptance of a past due installment, or indulgences granted from time to
time shall be construed (i) as a novation of this Note or as a
reinstatement of the indebtedness evidenced hereby or as a waiver of such
right of acceleration or of the right of Holder thereafter to insist upon
strict compliance with the terms of this Note, or (ii) to prevent the
exercise of such right of acceleration or any other right granted
hereunder or by the laws of the State of Georgia; and, with the sole
exception of any statute of limitations, Maker hereby expressly waives the
benefit of any statute or rule of law or equity now provided, or which may
hereafter be provided, which would produce a result contrary to, or in
conflict with, the foregoing. No extension of the time for the payment of
this Note or any installment due hereunder, made by agreement with any
person now or hereafter liable for the payment of this Note, shall operate
to release, discharge, modify, change or affect the original liability of
Maker under this Note, either in whole or in part unless Xxxxxx agrees
otherwise in writing. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
Maker hereby waives and renounces for itself, its successors and
assigns, all rights to the benefits of any statute of limitations, any
moratorium, reinstatement, marshaling, forbearance, valuation, stay,
extension, redemption, appraisement, exemption and homestead now provided,
or which may hereafter be provided by the Constitution and laws of the
United States of America and of any State thereof, both as to itself and
in and to all its property, real and personal, against the enforcement and
collection of the obligations evidenced by this Note. Maker hereby
transfers, conveys and assigns to Holder, a sufficient amount of such
homestead or exemption as may be set apart in bankruptcy, to pay this Note
in full, with all costs of collection, and does hereby direct any trustee
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in bankruptcy having possession of such homestead or exemption to deliver
to Holder a sufficient amount of property or money set apart as exempt to
pay the indebtedness evidenced hereby, or any renewal thereof, and does
hereby appoint Holder the attorney-in-fact for Maker to claim any and all
homestead exemptions allowed by law.
Maker hereby waives any right Maker may have under any applicable
law to a trial by jury with respect to any suit or legal action which may
be commenced by or against Holder concerning the interpretation,
construction, validity, enforcement or performance of this Note or any
other agreement or instrument executed in connection herewith. In the
event any such suit or legal action is commenced by Holder, Maker hereby
expressly agrees, consents and submits to the personal jurisdiction of any
state or federal court sitting in Xxxxxx County, Georgia, with respect to
such suit or legal action, and Maker also expressly consents and submits
to and agrees that venue in any such suit or legal action is proper in
said courts and county and Maker hereby expressly waives any and all
personal rights under applicable law or in equity to object to the
jurisdiction and venue in said courts and county. The jurisdiction and
venue of the courts consented and submitted to and agreed upon in this
paragraph are not exclusive but are cumulative and in addition to the
jurisdiction and venue of any other court under any applicable laws or in
equity.
Except as provided otherwise in this Note, all notices and other
communications under this Note are to be in writing and are to be deemed
to have been duly given and to be effective upon delivery to the party to
whom they are directed. If sent by a national overnight courier service or
by U.S. Mail, first class, certified, return receipt requested, postage
prepaid, and in either case addressed to any party at its respective
addresses set forth beneath its respective signature below, such notices,
demands and other communications are to be deemed to have been delivered
on the first business day after being entrusted to such courier or on the
fifth business day after being so deposited in the U.S. mail. If
transmitted by telecopy to any party at its respective telecopy number set
forth beneath its respective signature below, such notices, demands and
other communications are to be deemed to have been delivered when so
transmitted. Any party hereto may by written notice to the other designate
a different address or telecopy number for receiving notices under this
Note; provided, however, that no such change of address or telecopy number
will be effective until written notice thereof is actually received by the
party to whom such change of address or telecopy number is sent.
The address of Maker is: Suburban Lodges of America, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: Chief Financial Officer
with a copy to: Suburban Lodges of America, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: Corporate Secretary
Suburban Holdings, L.P.
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
with a copy to: Suburban Holdings, L.P.
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: Corporate Secretary
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Suburban Construction, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
with a copy to: Suburban Construction, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
If any provisions of this Note or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Note and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
The indebtedness evidenced by this Note and the obligations
created hereby are secured by the Security Deeds (as such term is defined
in the Loan Agreement), together with that certain Loan Agreement dated of
even date hereof by and between Maker and Payee (the "Loan Agreement"),
and all other documents evidencing or securing or in any way related to
the indebtedness evidenced hereby, herein referred to collectively as the
"Loan Documents" entered into this day concerning certain property located
in Minneapolis, Minnesota, Columbus, Ohio, Chicago, Illinois, El Paso,
Texas, San Antonio, Texas, Dallas, Texas, Chattanooga, Tennessee and
Tampa, Florida, some of which Loan Documents are to be filed for record on
or about the date hereof in the appropriate public records of said
locations, and this Note is the Line of Credit Note referred to in the
Loan Agreement. The sums being advanced hereunder are being advanced
pursuant to Article I, Section 1.3 of the Loan Agreement and shall be
governed by all of the terms and conditions of the Loan Agreement.
This Note is intended as a contract under, and shall be construed
and enforceable in accordance with, the laws of the State of Georgia.
As used herein, the terms "Maker," "Payee" and "Holder" shall be
deemed to include their respective heirs, successors, legal
representatives, and assigns, whether by voluntary action of the parties
or by operation of law.
[Signatures on following page]
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IN WITNESS WHEREOF, Xxxxx has executed this Note under seal as of
the date first above written.
SUBURBAN LODGES OF AMERICA, INC., a
Georgia corporation
By:
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Xxxx X. Xxxxxxxxxx, Xx., Chief
Financial Officer
[CORPORATE SEAL]
SUBURBAN HOLDINGS, L.P., a Georgia
limited partnership
By: Suburban Management, Inc., its
General Partner
By:
-----------------------------------
Xxxx X. Xxxxxxxxxx, Xx., Chief
Financial Officer
SUBURBAN CONSTRUCTION, INC., a Georgia
corporation
By:
-----------------------------------
Xxxx X. Xxxxxxxxxx, Xx., Chief
Financial Officer
[CORPORATE SEAL]
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