EXHIBIT 10.59
REVOLVING NOTE
RELATING TO THE SOUTHTRUST BANK N.A. $19,003,000 REVOLVING LINE OF CREDIT
Revolving Note
$19,003,000.00 December 15, 2000
FOR VALUE RECEIVED, the undersigned XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (hereinafter referred to as "Borrower"), promises
to pay to the order of SOUTHTRUST BANK, an Alabama banking corporation
(hereinafter referred to as "Lender"), the principal sum of Nineteen Million
Three Thousand and No/100 Dollars ($19,003,000.00), or so much thereof as may
have been advanced to Borrower from time to time hereunder in accordance with,
and subject to the conditions of, that certain Revolving Loan Agreement of even
date herewith between Borrower and Lender (as the same might hereafter be
amended, extended, supplemented, or restated, the "Loan Agreement"), together
with interest and other charges as provided herein.
1. Definitions. Capitalized terms used, but not defined, shall have the
meanings assigned to them in the Loan Agreement. As used in this Note, the
following terms shall have the following meanings:
"Adjusted LIBOR" shall mean the quotient of (i) the "London Interbank
Offered Rate (LIBOR)" at which U.S. Dollar deposits for a maturity
comparable to the Interest Period are offered to Lender in immediately
available funds in the London Interbank Market, as quoted in the Money
Rates section of The Wall Street Journal as effective for contracts entered
into on the first day of the applicable Interest Period, divided by (ii)
1.00 minus any applicable Reserve Requirement for such Interest Period
required by Regulation D (expressed as a decimal).
"Applicable Spread" shall mean one and seventy-five hundredths percent
(1.75%).
"Base Rate" shall mean the per annum rate of interest periodically
designated and announced to the public by Lender as its "Base Rate". The
Base Rate is not necessarily the lowest rate charged by Lender.
"Business Day" shall mean a day which is not a public holiday and on
which banks in Atlanta, Georgia, are customarily open for business.
"Default Rate" shall mean a per annum rate of interest equal to two
percentage points (2%) in excess of the rate of interest otherwise
applicable hereunder on the date the Default Rate takes effect.
"Eurodollar Rate" shall mean the rate per annum (rounded upwards, if
necessary, to the nearest 0.0625%) equal to the Adjusted LIBOR plus the
Applicable Spread, which rate shall not fluctuate during each Interest
Period.
"Interest Period" shall mean each successive period of one (1) Month
following the date of this Note, provided that (i) no Interest Period may
extend beyond the maturity of this Note, and (ii) if any such Interest
Period would otherwise end on a day that is not a Business Day, that
Interest Period shall be extended to
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Xxxxx Operating Partnership, L.P. - Revolving Loan
the next succeeding Business Day unless the result of such extension would
be to extend such Interest Period beyond the maturity of this Note, in
which event such Interest Period shall end on the immediately preceding
Business Day.
"Month" shall mean (i) with respect to the initial Interest Period
under this Note, the interval commencing on the date of this Note and
ending on the day before the first Monthly Payment Date, inclusive, and
(ii) with respect to each subsequent Interest Period, the interval
commencing on a Monthly Payment Date and ending on the day before the next
Monthly Payment Date, inclusive.
"Monthly Payment Date" shall mean the tenth (10th) of each calendar
month during the term of this Note.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall include
any successor or other regulation or official interpretation of said Board
of Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
"Reserve Requirement" shall mean with respect to any Interest Period,
the weighted average during such Interest Period of the maximum aggregate
reserve requirement (including all basic, supplemental, marginal, and other
reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements during the Interest Period), if
any, that is imposed under Regulation D and that is applicable to the class
of banks of which Lender is a member on "eurocurrency liabilities," as that
term is defined in Regulation D. Lender acknowledges that, as of the date
hereof, the Reserve Requirement is zero, provided that the Reserve
Requirement may increase from time to time during the term of this Note.
2. Payment Terms.
(a) Commencing on January 10, 2001, and on each Monthly Payment Date
thereafter until June 10, 2002 (the "Maturity Date"), Borrower shall pay to
Lender all accrued but unpaid interest on the outstanding principal of this
Note. On the Maturity Date, Borrower shall pay to Lender the entire outstanding
principal balance of this Note, together with all accrued interest thereon.
(b) All payments shall be applied, at Lender's option, first to any fees,
expenses, or other costs that Borrower is obligated to pay under this Note or
the other Loan Documents, second to interest due on this Note, and third to the
outstanding principal of this Note. All payments, fees, charges, and other sums
due hereunder shall be remitted to Lender at the following address:
SouthTrust Bank
P. O. Box 830776
Birmingham, Alabama 35283-0776
Attn: XxXxxxxxx Loan Servicing
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or at such other address as Lender or any subsequent holder of this Note may
from time to time designate in writing. All principal, interest, and other
charges payable under this Note shall be paid in lawful money of the United
States of America.
(c) Borrower will pay to Lender a late charge equal to five percent (5%)
of the amount of any payment that is not received by Lender within ten (10) days
after the date such payment is due under the terms of this Note. In no case
will any such late charge be less than $0.50 or more than the maximum amount
allowed by applicable law. Collection or acceptance by Lender of such late
charge will not constitute a waiver of any rights or remedies of Lender provided
in this Note or in any other Loan Document. The late charge provided for herein
represents a fair and reasonable estimate by Xxxxxxxx and Xxxxxx of a fair
average compensation for the loss that might be sustained by Lender due to the
failure of Borrower to make timely payments hereunder, the parties recognizing
that the damages caused by such extra administrative expenses and loss of the
use of funds is impracticable or extremely difficult to ascertain or estimate.
3. Interest Rate.
(1) The principal of this Note outstanding from time to time shall bear
interest at the Eurodollar Rate, which rate shall not fluctuate during each
applicable Interest Period. As of the commencement of each Interest Period
following the initial Interest Period, the rate of interest on this Note shall
increase or decrease to reflect change in the Eurodollar Rate from the Interest
Period just ended.
(2) Notwithstanding anything to the contrary herein, if at any time Lender
determines, in accordance with reasonable and ordinary commercial standards,
that its acquisition of funds in the London Interbank Market would be in
violation of any law, regulation, guideline, or order, Lender may so notify
Borrower in writing or by telephone, and upon the giving of such notice, this
Note will immediately cease bearing interest at the Eurodollar Rate as provided
above, and the outstanding principal of this Note shall thereupon commence to
bear interest at the variable per annum rate equal to the Base Rate; provided
that if, as of the last day on which interest on this Note accrues at the
Eurodollar Rate, the Base Rate is lower or higher than the Eurodollar Rate in
effect on this Note on such date, then a spread shall be added to or subtracted
from Base Rate in an amount equal to the difference between the Base Rate and
the Eurodollar Rate in effect on this Note (the "Base Rate Spread"), and
principal of this Note shall thereafter bear interest at the variable rate equal
to the Base Rate Spread plus the Base Rate. For example, if on such day the
Eurodollar Rate is 6.75% and the Base Rate is 6.25%, then the Base Rate Spread
shall be 0.50%. If on such day the Base Rate is 7.50%, then the Base Rate Spread
shall be -0.75%. At all times while this Note bears interest at a rate
determined by using the Base Rate as a reference, such rate shall be adjusted to
reflect changes in the Base Rate, with such adjustments being effective of the
date that the Base Rate changes. Notwithstanding the fact that Xxxxxx has based
the interest rate applicable hereunder upon Xxxxxx's cost of
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funds in the London Interbank Market, Lender shall not be required actually to
obtain funds from such source at any time.
(3) Upon the occurrence of any Event of Default hereunder, the principal
amount of this Note shall automatically, without notice to or demand upon
Borrower, bear interest at the Default Rate. Xxxxxxxx agrees that the Default
Rate represents a fair and reasonable estimate by Xxxxxxxx and Lender of a fair
average compensation for the risk of loss that Lender will experience due to the
occurrence of an Event of Default and for the cost and expenses that might be
incurred by Lender by reason of the occurrence of an Event of Default, with the
parties agreeing that the damages caused by such increased risk and extra cost
and expenses are impracticable or extremely difficult to ascertain or estimate.
The payment by Xxxxxxxx of interest at the Default Rate will not prejudice the
rights of Lender to collect any other amounts required to be paid by Borrower
hereunder or under any of the other Loan Documents.
(4) All interest on the principal of this Note, whether calculated using
the Eurodollar Rate, the Base Rate, or the Default Rate as a reference, shall be
calculated on the basis of a 360-day year by multiplying the outstanding
principal amount by the applicable per annum rate, multiplying the product
thereof by the actual number of days elapsed, and dividing the product so
obtained by 360.
4. Prepayment. Borrower may prepay the outstanding principal of this
Note, or any part thereof, at any time and from time to time. Partial
prepayments will be applied to principal installments coming due under this Note
in their inverse order of maturity. Borrower may reborrow, repay, and reborrow
up to a principal amount outstanding not exceeding the amount of this Note so
long as no Event of Default (as defined in the Loan Agreement) exists.
5. Collection Costs. Lender shall be entitled to recover all costs of
collecting, securing, or attempting to collect or secure this Note, or defending
any action seeking the avoidance or rescission of any payment of or security for
this Note, including, without limitation, court costs and reasonable attorneys'
fees actually incurred, including attorneys' fees on any appeal by either
Borrower or Lender.
6. Fees. In consideration of the extension of credit evidenced hereby,
Borrower will pay to Lender a commitment fee in the amount of $
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which fee shall be fully earned by Xxxxxx and due and payable by Borrower in
full at the time of the initial Advance under the Loan. Such fee will not be
subject to proration or rebate in the event that the outstanding principal
hereof is prepaid by Xxxxxxxx. In addition, a fee of one eighth (1/8th) of one
percent (1%) of each advance made under the Loan shall be due and payable at the
time Lender makes such advance.
7. Events of Default. The occurrence or existence of an Event of
Default pursuant to, and as defined in, the Loan Agreement, including, without
limitation, Borrower's failure to pay any installment of principal or interest
on this Note or any other sum due hereunder on the due date thereof, which
failure continues beyond any cure period and notice requirement set forth in the
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Xxxxx Operating Partnership, L.P. - Revolving Loan
Loan Agreement, shall constitute an event of default under this Note (an "Event
of Default"). Lender, at its option, upon or at any time after the occurrence
of an Event of Default, may (i) declare the then outstanding principal amount of
this Note, together with all accrued interest thereon and all other agreed or
permitted charges owing by Borrower hereunder, to be, and the same will
thereupon become, immediately due and payable without notice to or demand upon
Borrower, all of which Borrower hereby expressly waives, and (ii) pursue all
rights and remedies available under the Loan Documents and at law or in equity.
All rights and remedies of Lender under the terms of this Note and the other
Loan Documents and applicable statutes or rules of law will be cumulative and
may be exercised successively or concurrently.
8. Usury. It is expressly stipulated and agreed to be the intent of
Xxxxxx and Borrower to at all times conform to and contract in strict compliance
with applicable usury law from time to time in effect. All agreements between
Lender and Borrower (or any other party liable with respect to any indebtedness
under this Note), including, without limitation, this Note and any other
agreement, document or instrument relating to the indebtedness evidenced hereby,
are hereby limited to the provisions of this Section which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral (however, reference to the term "oral" shall not be
construed to modify or negate any provisions hereof regarding the absence or
ineffectiveness of oral agreements). In no way, nor in any event or contingency
(including, but not limited to, prepayment, default, demand for payment or
acceleration of maturity), shall the interest taken, reserved, contracted for,
charged, chargeable or received under this Note exceed the maximum nonusurious
amount permitted by applicable law (the "Maximum Amount"). If, from any
possible construction of any agreement (including, without limitation, this Note
and any other agreement, document or instrument relating to the indebtedness
evidenced hereby), interest would otherwise be payable in excess of, or is
adjudicated to be payable in excess of, the Maximum Amount, any such
construction shall be subject to the provision of this section, and, ipso facto,
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such document shall be reformed and the interest payable shall be reduced to the
Maximum Amount, without the necessity of execution of any amendment or new
document. If the holder hereof shall ever receive anything of value that is
characterized as interest under applicable law and that would apart from this
provision be in excess of the Maximum Amount, an amount equal to the amount that
would have been excessive interest shall, without penalty, be applied to the
reduction of the principal amount owing on the indebtedness evidenced hereby and
not to the payment of interest, or promptly refunded to the Borrower if and to
the extent such amount that would have been excessive exceeds such unpaid
principal.
The right to accelerate maturity of this Note or any other indebtedness does not
include the right to accelerate any interest that has not otherwise accrued on
the date of such acceleration, and the holder hereof does not intend to take,
reserve, contract for, charge or receive any unearned interest in the event of
acceleration. All interest paid or agreed to be paid to the holder hereof
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term (including any renewal or
extension) of such indebtedness so that the amount of interest on account of
such indebtedness does not exceed the Maximum Amount. As used in this section,
the term "applicable law" shall mean the laws of the state in which this Note is
enforced or the federal laws of the United States applicable to this
transaction, whichever laws allow the greater interest, as such laws now exist
or may be changed or amended or come into effect in the future.
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9. Time of Essence. Time is of the essence with respect to this Note and
the performance of all obligations contained herein.
10. Waiver. Borrower, and all guarantors (including Guarantor),
endorsers, and sureties of this Note, hereby waives, to the fullest extent
permitted by applicable law, 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, 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 any further receipt for or
acknowledgment of any collateral now or hereafter deposited by Xxxxxxxx as
security for the obligations hereunder.
11. Binding Effect. Lender will not by any act, delay, omission, or
otherwise be deemed to have waived any of its rights or remedies under this Note
or the other Loan Documents, and no waiver of any kind will be valid unless in
writing and signed by Xxxxxx. The provisions of this Note will be construed
without regard to the party responsible for the drafting and preparation hereof.
Any provision in this Note that might be unenforceable or invalid under any law
will be ineffective to the extent of such unenforceability or invalidity without
affecting the enforceability or validity of any other provision hereof. This
Note and the obligations of Borrower hereunder shall be binding upon and
enforceable against Xxxxxxxx and its successors and assigns and will inure to
the benefit of Xxxxxx and its successors and assigns, including any subsequent
holder of this Note. Xxxxxxxx agrees that, without releasing or impairing
Xxxxxxxx's liability hereunder, Xxxxxx may at any time release, surrender,
substitute, or exchange any collateral securing this Note and may at any time
release any party primarily or secondarily liable for the indebtedness evidenced
by this Note.
12. Document Protocols. This Note is governed by the Document Protocols
set forth in Exhibit A attached to the Loan Agreement, which are incorporated by
reference into this Note as if fully set forth herein.
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IN WITNESS WHEREOF, Xxxxxxxx has executed this Note, or has caused this
Note to be executed by its duly authorized representative, on the day and year
first above written, with the intention that this Note to take effect as an
instrument under seal.
XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc.,
a Maryland corporation,
Its sole General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Executive Vice President
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[Affix corporate seal]
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