EXHIBIT 10.62
AMENDED AND RESTATED REVOLVING NOTE
RELATING TO THE SOUTHTRUST BANK N.A. $7,900,000 REVOLVING LINE OF CREDIT
Amended and Restated Revolving Note
$7,900,000.00 December 15/th/, 2000
FOR VALUE RECEIVED, the undersigned XXXXX REIT, LLC - VA I, a Georgia
limited liability company (hereinafter referred to as "Borrower"), promises to
pay to the order of SOUTHTRUST BANK, an Alabama banking corporation (as
successor by conversion to SouthTrust Bank, National Association, a national
banking association) (hereinafter referred to as "Lender"), the principal sum of
Seven Million Nine Hundred Thousand and No/100 Dollars ($7,900,000.00), 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 Xxxxxxx 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. Purpose of Note; Incorporation of Loan Agreement. This "Note" amends,
renews, decreases, restates, and reinstates that certain Promissory Note dated
December 29, 1999, payable by Borrower to the order of Lender in the principal
amount of $9,280,000.00 (the "Original Note"). This Note is the "Note" referred
to in, and is issued pursuant to the Loan Agreement. The principal of this Note
will be disbursed to Borrower in a series of advances in accordance with, and
subject to the conditions of the Loan Agreement. This Note is entitled to all of
the benefits and security of the Loan Agreement and the other Loan Documents (as
defined in the Loan Agreement), and all of the terms, covenants, and conditions
of the Loan Agreement are hereby made a part of this Note and are deemed
incorporated herein in full.
2. 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.
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This Note amends, renews, decreases, and restates that certain Promissory Note
dated December 29, 1999, payable by Borrower to the order of Lender in the
principal amount of $9,280,000.00 (the "Original Note"). The appropriate
recording tax of $18,560.00 was paid as required by law with respect to the
Original Note. Accordingly, no additional recording tax is due with respect to
this Note.
"Business Day" shall mean a day which is not a public
holiday and on which banks in Atlanta, Georgia, are customarily
open for business.
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Xxxxx REIT, LLC - VA I (ABB Office Building)
"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 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.
"Loan Term" shall mean the period commencing on the date of
this Note and ending on the Maturity Date.
"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.
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3. 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
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.
4. 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 during
the Loan Term 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
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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 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 Fixed 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.
5. 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.
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,
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court costs and reasonable attorneys' fees actually incurred, including
attorneys' fees on any appeal by either Borrower or Lender.
7. Fees. In consideration of the extension of credit evidenced hereby, 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.
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 thereof, which
failure continues beyond any cure period and notice requirement set forth in the
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.
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, 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
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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 Borrower 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, 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 Article Nine of the Loan Agreement, which are incorporated by
reference into this Note as if fully set forth herein.
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 REIT, LLC - VA I, a Georgia limited
liability company
By: Xxxxx Real Estate Investment
Trust, Inc.,
a Maryland corporation
Its Sole Manager
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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Xxxxx REIT, LLC - VA I (ABB Office Building)
