EXHIBIT 10.40
AMENDED AND RESTATED PROMISSORY NOTE
FROM XXXXXX XXXXXXXXX, L.P.
TO
SOUTHTRUST BANK, NATIONAL ASSOCIATION
AMENDED AND RESTATED PROMISSORY NOTE
$15,500,000.00 DECEMBER 31, 1998
FOR VALUE RECEIVED, the undersigned XXXXXX XXXXXXXXX, L.P., a Georgia
limited partnership, ("Borrower"), promises to pay to the order of SOUTHTRUST
BANK, NATIONAL ASSOCIATION, a national banking association ("Lender), the
principal sum of FIFTEEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($15,500,000.00) 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 Amended and Restated 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 otherwise defined, in
this Note shall have the meanings given them in the Loan Agreement. In
addition, 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).
"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.
================================================================================
THIS NOTE AMENDS, RENEWS, DECREASES, AND RESTATES THAT CERTAIN PROMISSORY NOTE
DATED MARCH 31, 1998, PAYABLE BY BORROWER TO THE ORDER OF LENDER IN THE
PRINCIPAL AMOUNT OF $20,251,000.00 (THE "ORIGINAL NOTE"). XXXXXX HAS PAID THE
STATE OF FLORIDA DOCUMENTARY STAMP TAX IN THE AMOUNT REQUIRED BY LAW WITH
RESPECT TO THE ORIGINAL NOTE AND, ACCORDINGLY, NO ADDITIONAL DOCUMENTARY STAMP
TAX IS DUE WITH RESPECT TO THIS AMENDED AND RESTATED NOTE.
--------------------------------------------------------------------------------
Amended and Restated Promissory Note - Page 1
"Eurodollar Rate" shall mean the rate per annum (rounded upwards, if
necessary, to the nearest 0.0625%) equal to the Adjusted LIBOR plus one
hundred eighty-five basis points (1.85%), 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 the next succeeding Business Day.
"Maturity Date" shall mean December 31, 2000.
"Month" shall mean, with respect to an Interest Period, the interval
commencing on a Scheduled Payment Date and ending on the day before the
next Scheduled Payment Date, inclusive; provided that the first Month of
the initial Interest Period shall commence on the date of this Note and end
on the day before the first Scheduled Payment Date.
"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.
"Scheduled Payment Date" shall mean any date on which a payment of
principal or interest (or both) is due under the terms of this Note.
2. PAYMENT TERMS. On the date of this Note, Xxxxxxxx shall pay all
interest accrued and to accrue on the outstanding principal of the Note through
and including December 31, 1998. On February 1, 1999, and on the first (1st)
day of each successive calendar month thereafter until the Maturity Date,
Borrower shall pay to Lender (i) all accrued but unpaid interest on the
outstanding principal of this Note, plus (ii) an installment of principal in the
amount of $12,500.00. On the Maturity Date, Borrower shall pay to Lender the
entire outstanding principal balance of this Note, together with all accrued
interest thereon. All payments shall be applied, at Xxxxxx's option, first to
any fees, expenses, or other costs that Borrower is obligated to pay under this
Note or the
--------------------------------------------------------------------------------
Amended and Restated Promissory Note - Page 2
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, National Association
P. O. Box 830776
Birmingham, Alabama 35283-0776
Attn: XxXxxxxxx Loan Servicing
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.
3. INTEREST RATE.
(a) The principal of this Note outstanding from time to time shall bear
interest at the Eurodollar Rate. As of the commencement of each Interest Period
following the initial Interest Period hereunder, the rate of interest on this
Note shall increase or decrease to reflect change in the Eurodollar Rate from
the Interest Period just ended.
(b) 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
determining 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 funds in the
London Interbank Market, Lender shall not be required actually to obtain funds
from such source at any time.
(c) 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 Xxxxxx will experience due to the
occurrence of an Event of Default and for the cost and expenses that might be
incurred by Xxxxxx by reason of the occurrence of an Event of Default, with the
parties agreeing that the
--------------------------------------------------------------------------------
Amended and Restated Promissory Note - Page 3
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.
(d) 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. Amounts prepaid may reborrowed in
accordance with the provisions of the Loan Agreement.
5. LATE CHARGES. 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.
6. 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.
7. LOAN DOCUMENTS. This Note evidences borrowings under, and is the
"Note" referred to in, and is issued pursuant to, the Loan Agreement and is
entitled to all of the benefits and security of the Loan Agreement, the
Guaranty, the Security Documents, and the other Loan Documents (as such terms
are defined in the Loan Agreement). This Note amends, extends, decreases, and
restates that certain Promissory Note dated March 31, 1998, payable by Borrower
to the order of Lender in the principal amount of $20,251,000.00 (the "Original
Note"). The execution and delivery by Borrower of this Note shall not be
construed or interpreted as a payment, satisfaction, or novation, in whole or in
part, of the Original Note; rather this Note is strictly amendatory in nature.
8. 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
--------------------------------------------------------------------------------
Amended and Restated Promissory Note - Page 4
thereof, which failure continues beyond any cure period and notice requirement
set forth in the Loan Agreement, will 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.
9. USURY. It is the intent of Xxxxxxxx and Xxxxxx in the execution of
this Note and all other Loan Documents to contract in strict compliance with the
usury laws governing the loan evidenced by this Note. In furtherance thereof,
Xxxxxx and Xxxxxxxx stipulate and agree that none of the terms and provisions
contained in the Loan Documents shall ever be construed to create a contract for
the use, forbearance, or detention of money requiring payment of interest at a
rate in excess of the maximum interest rate permitted to be charged by the laws
governing the loan evidenced by the Note. Borrower or any guarantor (including
Guarantor), endorser, or other party now or hereafter becoming liable for the
payment of the Note shall never be liable for unearned interest on the Note and
shall never be required to pay interest on the Note at a rate in excess of the
maximum interest that may be lawfully charged under the laws governing the loan
evidenced by the Note, and the provisions of this paragraph shall control over
all other provisions of the Note and any other instrument executed in connection
herewith which may be in apparent conflict herewith. In the event any holder of
the Note shall collect monies that are deemed to constitute interest and that
would otherwise increase the effective interest rate on the Note to a rate in
excess of that permitted to be charged by the laws governing the loan evidenced
by the Note, all such sums deemed to constitute interest in excess of the legal
rate shall be applied to the unpaid principal balance of the Note and if in
excess of such balance, shall be immediately returned to the Borrower upon such
determination. All sums paid or agreed to be paid for the use, forbearance or
detention of money payable under this Note shall, to the extent allowed by
applicable law, be amortized, prorated, allocated and spread throughout the full
term of this Note.
10. TIME OF ESSENCE. Time is of the essence with respect to this Note and
the performance of all obligations contained herein.
11. WAIVER. Borrower, and all guarantors (including Guarantor), endorsers,
and sureties of this Note, hereby waives, to the fullest extent permitted by
applicable law, (i) 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, (ii) 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 (iii) any further receipt for or acknowledgment of
any collateral now or hereafter deposited by Xxxxxxxx as security for the
obligations hereunder.
12. 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,
--------------------------------------------------------------------------------
Amended and Restated Promissory Note - Page 5
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.
13. 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.
--------------------------------------------------------------------------------
Amended and Restated Promissory Note - Page 6
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.
XXXXXX XXXXXXXXX, L.P., a Georgia limited
partnership
By: XXXXXX & ASSOCIATES ENTERPRISES, INC.,
a Georgia corporation
Its Sole General Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President
---------------------------------
[Affix corporate seal]
-------------------------------------------------------------------------------
Amended and Restated Promissory Note - Page 7
