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EXHIBIT 99.3
FORM OF COMPETITIVE BID NOTE
December 23, 1997
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Unsecured Revolving Credit
Agreement dated as of December 23, 1997 (the "Agreement") between XXXXXXX
OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership ("Borrower"),
Xxxxxxx Real Estate, Inc., Xxxxxxx Financing Partnership, BankBoston, N.A.,
individually and as Documentation Agent for the Lenders, individually and as
Administrative Agent for the Lenders and certain other lenders party thereto (as
such terms are defined in the Agreement), Borrower promises to pay to the order
of _________________________ (the "Lender"), or its successors and assigns, the
unpaid principal amount of such Competitive Bid Loan made by the Lender to the
Borrower pursuant to Section 2.16 of the Agreement, without set-off or
counterclaim in immediately available funds at the office of the Administrative
Agent in Chicago, Illinois, together with interest on the unpaid principal
amount hereof at the rates and on the dates established pursuant to the
Agreement. The Borrower shall pay any remaining unpaid principal amount of such
Competitive Bid Loans under this Competitive Bid Note ("Note") in full on or
before the Maturity Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
If there is an Event of Default or Default under the
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Agreement or any other Loan Document and Lender exercises its remedies provided
under the Agreement and/or any of the Loan Documents, then in addition to all
amounts recoverable by the Lender under such documents, Lender shall be entitled
to receive reasonable attorneys fees and expenses incurred by Xxxxxx in
exercising such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
XXXXXXXX AND XXXXXX, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
XXXXXXX OPERATING LIMITED PARTNERSHIP
By: Xxxxxxx Real Estate, Inc., its
general partner
By:
Its:
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PAYMENTS OF PRINCIPAL
Unpaid
Principal
Notation
Date Balance
Made by
