Exhibit 10.45
CREDIT NOTE
$25,000,000 Date: September 27, 2002
FOR VALUE RECEIVED, Windrose Medical Properties, L.P., a Virginia
limited partnership (the "Borrower"), promises to pay to the order of The
Huntington National Bank, a national banking association ("Bank") the lesser of
Twenty-Five Million Dollars ($25,000,000) or the amount of all Advances
outstanding from time to time. This Note is executed and delivered pursuant to a
certain Secured Revolving Credit Agreement (the "Credit Agreement") entered into
by Borrower and Bank of even date herewith. All defined terms not otherwise
defined herein shall have the meaning set forth in the Credit Agreement.
Xxxxxxxx also promises to pay to the order of Bank the amount of all
interest upon all Advances. Borrower shall pay to Bank on each Payment Date, all
accrued and unpaid interest then outstanding on the Loan. Each Advance shall be
due upon the Maturity Date, unless such Advance is sooner paid or the Loan is
accelerated pursuant to the terms hereof.
Subject to the terms and limitations of the Loan Agreement, Borrower
may borrow, prepay, reborrow and repay the principal amount of this Note at any
time and from time to time prior to the Maturity Date.
Borrower may prepay the principal amount of any Prime Advance in whole
or in part from time to time without any prepayment penalty. Borrower may not
prepay any LIBOR Advance before the expiration of the LIBOR Interest Period
applicable to such LIBOR Advance, except upon the payment of the amount provided
for below.
Each Advance shall be made under this Note as either a Prime Advance or
a LIBOR Advance, as selected by the Borrower. Borrower may have Prime Advances
and LIBOR Advances outstanding simultaneously; provided, however, Borrower may
not have more than five (5) LIBOR Advances in existence at any time and each
LIBOR Advance must be in an amount which is greater than or equal to One Million
Dollars ($1,000,000). Borrower may convert any Prime Advances aggregating at
least $1,000,000 in principal amount into a LIBOR Advance on the first day of a
calendar month. At the end of the LIBOR Interest Period applicable to a LIBOR
Advance, the Borrower may renew the LIBOR Advance or may convert the LIBOR
Advance to a Prime Advance. If Borrower fails to renew any LIBOR Advance or if
Borrower shall receive any new Advance without designating whether such Advance
is a LIBOR Advance or a Prime Advance, such Advance shall automatically be
deemed to be a Prime Advance. At any time that Borrower desires a LIBOR Advance
or intends to renew a LIBOR Advance or convert a Prime Advance into a LIBOR
Advance, Borrower must notify Bank by a Notice of Pricing Election in the form
attached hereto as Exhibit A at least three (3) London Banking Days prior to the
day on which Borrower desires such Advance, renewal or conversion to be
effective. Borrower shall have no right to designate a new Advance as, or
convert an existing Prime Rate Advance to, a LIBOR Advance if an Event of
Default is then continuing. Borrower shall have no right to select a LIBOR
Interest Period for a LIBOR Advance if such LIBOR Interest Period would extend
beyond the maturity of such Advance.
While and so long as no Event of Default is continuing, interest shall
accrue at the applicable Interest Rates upon the daily principal balance of this
Note, based on a three hundred sixty (360) day year, for the actual number of
days elapsed since the date to which interest has
been paid. While and so long as an Event of Default is continuing, interest
shall accrue at the applicable Default Interest Rates upon the daily principal
balance of this Note, based on a three hundred sixty (360) day year, for the
actual number of days elapsed since the date to which interest has been paid.
If any sum of principal or interest is not paid within five (5)
business days after the date when due, then, in addition to and not in lieu of
any other rights or remedies available to Bank, Borrower shall pay to Bank, on
demand, a late fee in an amount equal to the greater of five percent (5%) of
such sum or Twenty-five Dollars ($25.00), but not to exceed Two Hundred Fifty
Dollars ($250.00). In no event, however, shall a late fee be payable under this
Section in respect of an Advance and the interest thereon if the Borrower fails
to pay such Advance and interest on the Advance Maturity Date therefor or on the
date on which such Advance and interest are payable as a result of the
acceleration of the Loan pursuant to the terms of the Loan Agreement.
Bank is authorized to make, from time to time and based upon Bank's
records, notations on its records as to the date and amount of each Advance, the
date and amount of each payment of principal and interest received by Bank, the
principal balance of this Note, and the date to which interest has been paid.
Any request, notice, or demand by or on behalf of Bank, three (3) days
after the date when delivered, or deposited for delivery, postage prepaid, by
certified or registered United States mail to Borrower at Borrower's address set
forth in the Loan Agreement, shall constitute, but shall not preclude other
means of, an effective request, notice, or demand. Borrower waives all notices
and demands in connection with the delivery, acceptance, performance, default,
or enforcement of this Note (including, without limitation demand, presentment,
notice of non-payment, protest, notice of protest and notice of dishonor). All
provisions of this Note shall be governed by, and interpreted in a manner
consistent with, applicable State and United States law. To the extent of any
inconsistency or conflict between applicable State and United States law, the
provision of law most favoring Bank shall control. Unenforceability of any
provision or any application of any provision of this Note in any jurisdiction
shall not affect the enforceability of such provision or such application in any
other jurisdiction or of any other provision or any other application of any
provision of this Note.
This Note is secured by collateral described in the Credit Agreement.
Payments required hereunder shall be made in lawful money of the United
States of America in immediately available funds at Bank's main office. If
required payment hereunder shall become due on a Saturday, Sunday, public
holiday under the laws of the State of Indiana, or on any other day on which
banking institutions are authorized or obligated by law to close in the City of
Columbus, Ohio, such payment shall be made on the next succeeding business day
and such extension of time shall in such case be included in computing interest
in connection with such payment.
Any amendment or waiver of any provision of this Note or any waiver of
any right or remedy otherwise available to Bank must be in writing and signed by
Bank. All rights and remedies available to Bank (including, without limitation,
any as a secured party pursuant to the provisions of Article 9 of the UCC) shall
be cumulative.
If Bank shall determine, after the date hereof, that the adoption of
any applicable law, rule, regulation or guideline regarding capital adequacy, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by Bank (or its lending office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on Bank's capital (or on the capital of Bank's
holding company) as a consequence of the Loan to a level below that which Bank
(or its holding company) could have achieved but for such adoption, change or
compliance (taking into consideration Bank's policies or the policies of its
holding company with respect to capital adequacy) by an amount deemed by Bank to
be material, then from time to time, within fifteen (15) days after demand by
Bank, Borrower shall either (a) pay to Bank such additional amount or amounts as
will compensate Bank (or its holding company) for such reduction, or (b) convert
all LIBOR Advances to a Prime Advance. If Borrower elects the option provided in
the foregoing subparagraph (b), Borrower shall not be subject to the requirement
hereunder that Borrower reimburse Bank for any loss, cost or expense incurred by
Bank as a result of Borrower paying a LIBOR Advance prior to the end of the
applicable LIBOR Interest Period; provided, however, thereafter Borrower may not
elect for any Advances to be LIBOR Advances. Bank will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of Bank, be otherwise
disadvantageous to Bank. In determining the amount of compensation to be paid to
Bank under this Section, Bank may use any reasonable averaging and attribution
methods. Failure on the part of Bank to demand compensation for any reduction in
return on capital with respect to any period shall not constitute a waiver of
Bank's rights to demand compensation for any reduction in return on capital in
such period or in any other period. The protection of this section shall be
available to Bank regardless of any possible contention of the invalidity of the
law, regulation or other condition which shall have been imposed.
If any LIBOR Advance becomes due and payable or is prepaid prior to the
last day of the applicable Interest Period (including any prepayment resulting
from the acceleration of the Loan by Bank as a consequence of an Event of
Default), Xxxxxxxx also promises to reimburse Bank on demand for any resulting
loss, cost, or expense incurred by Bank as a result thereof including, without
limitation, any loss incurred in obtaining, liquidating, or employing deposits
from third parties, but excluding Bank's loss of margin for the period after any
such payment; provided, however, Borrower shall not be required to reimburse
Bank for any loss, cost or expenses incurred by Bank as a result of the
prepayment of a LIBOR Advance prior to the last day of the applicable LIBOR
Interest Period if such LIBOR Advance is paid in full and such prepayment
results from the sale of the Project in respect of which such LIBOR Advance was
made. If, because of the introduction of or any change in, or because of any
judicial, administrative, or other governmental interpretation of, any law or
regulation, there shall be any increase in the cost to Bank of making, funding,
maintaining, or allocating capital to LIBOR Advances, then, from time to time
within fifteen (15) days after demand by Bank, Bank shall either (a) pay to Bank
additional amounts sufficient to compensate Bank for such increased cost, or (b)
convert all LIBOR Advances to a Prime Advance. If Borrower elects the option
provided in the foregoing subparagraph (b), Borrower shall not be subject to the
requirement hereunder that Borrower reimburse Bank for any loss, cost or expense
incurred by Bank as a result of Borrower paying a LIBOR Advance prior to the end
of the applicable LIBOR Interest Period; provided, however, thereafter Borrower
may not elect for any Advances to be LIBOR Advances. If, because of the
introduction of or any change in, or because of any judicial, administrative, or
other governmental interpretation of, any law or regulation, it becomes unlawful
for Bank to make, fund, or maintain any LIBOR Advance, then Bank's obligation to
make, fund, or maintain any LIBOR Advance shall terminate.
At any time during the continuance of any Event of Default, at the
option of Bank, in addition to and not in lieu of any other rights or remedies
available to Bank at law or in equity: (a) all Obligations, together with costs
of collection and reasonable attorneys' fees, shall become due and payable
without further notice or demand, and without relief from valuation and
appraisement laws, and (b) Bank shall not be obligated to make any further
Advances.
As used in this Note:
"ADJUSTED LIBOR INTEREST RATE" means a rate per annum equal to the
quotient obtained (rounded upwards, if necessary, to the nearest 1/100th of 1%)
by dividing (i) the applicable LIBOR Interest Rate by (ii) 1.00 minus the
Reserve Percentage.
"ADVANCE MATURITY DATE" has the meaning assigned to that term in the
Loan Agreement.
"ADVANCES" means all loan advances made by Bank pursuant to the terms
of the Loan Agreement and evidenced by this Note, and "ADVANCE" means any of the
Advances.
"DEFAULT INTEREST RATE" means the rate per annum (computed on the basis
of a year of three hundred sixty (360) days) equal to Two Percent (2%) in excess
of the applicable Interest Rate otherwise then in effect, but shall not at any
time exceed the maximum lawful rate of interest in effect on the date the
default first occurred. The Default Interest Rate shall be immediately and
correspondingly adjusted, from time to time, with each change in the Applicable
Interest Rates, but shall at no time exceed the maximum lawful rate in effect on
the date the default first occurred.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EVENT OF DEFAULT" has the meaning assigned to that term in the Loan
Agreement.
"INTEREST RATE" means, as to each Advance, a rate per annum equal to
(i) for Prime Advances, the Prime Interest Rate and (ii) for LIBOR Advances, the
Adjusted LIBOR Interest Rate.
"LIBOR" means the average (rounded upward to the nearest 1/16 of 1%) of
the per annum rates at which deposits in immediately available funds in U.S.
dollars for the applicable LIBOR Interest Period and in the amount of the
applicable LIBOR Advance are offered to the Bank by prime banks in any
Eurodollar market reasonably selected by the Bank, determined as of 11:00 a.m.
London time (or as soon thereafter as practicable) two (2) London Banking Days
prior to the beginning of the applicable LIBOR Interest Period.
"LIBOR ADVANCE" means any Advance evidenced by this Note during any
period in which the Interest Rate is determined with reference to the Adjusted
LIBOR Interest Rate.
"LIBOR INTEREST PERIOD" means a period one (1) month, two (2) months,
three (3) months or six (6) months, as selected by Xxxxxxxx.
"LIBOR INTEREST RATE" means a rate per annum equal to (i) One and Three
Quarters Percent (1-3/4%) above LIBOR at such time as the Leverage Ratio is less
than Forty Percent
(40%), and (ii) Two Percent (2%) above LIBOR at such time as the Leverage Ratio
exceeds Forty Percent (40%).
"LOAN" has the meaning assigned to that term in the Credit Agreement.
"LOAN DOCUMENTS" has the meaning assigned to that term in the Loan
Agreement.
"LONDON BANKING DAY" means a day on which banks are open for business
in London, England, and quoting deposit rates for dollar deposits.
"OBLIGATIONS" means all present or future obligations, indebtedness,
and liabilities of Borrower owed to Bank of whatever kind and however evidenced,
including, without limitation, all renewals thereof, extensions thereof,
restatements thereof, amendments thereto, and substitutions therefor; and
"Obligation" means any of the Obligations. Obligations also include, without
limitation, all Advances and all interest upon all Advances.
"PAYMENT DATE" means the first (1st) day of each calendar month
following the date hereof until this Note is paid in full and no further
borrowings are available under the Loan.
"PERSON" and "SECURITY INTEREST" shall be defined as set forth in
Article 1 of the UCC.
"PRIME ADVANCE" means any Advance evidenced by this Note during any
period in which the Interest Rate is determined with reference to the Prime
Rate.
"PRIME INTEREST RATE" means a rate per annum equal to the Prime Rate.
"PRIME RATE" means that interest rate established from time to time by
Bank as Bank's Prime Rate, whether or not such rate is publicly announced. The
Prime Rate may not be the lowest interest rate charged by Bank for commercial or
other extensions of credit. Each interest rate referred to herein and determined
by reference to the Prime Rate shall change automatically from time to time,
effective as of the effective date of each change in the Prime Rate.
"PROJECT" has the meaning assigned to that term in the Loan Agreement.
"RESERVE PERCENTAGE" means for any day that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, all basic, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) for a member bank of the
Federal Reserve System in Cleveland, Ohio, in respect of "Eurocurrency
Liabilities". The Adjusted LIBOR shall be adjusted automatically on and as of
the effective date of any change in the Reserve Percentage.
"STATE" means the State in which a Project is located.
"UCC" means the Uniform Commercial Code of the State of Indiana and the
State, as amended; any reference in this Note to any provision of the UCC shall
be deemed to incorporate such provision as if fully set forth in this Note.
Borrower, to the extent permitted by law, waives any right to have a
jury participate in resolving any dispute, whether sounding in contract, tort,
or otherwise, between Bank and
Borrower arising out of, in connection with, related to, or incidental to the
relationship established between Borrower and Bank in connection with this Note
or any other agreement, instrument or document executed or delivered in
connection therewith or the transactions related thereto. Borrower shall not
seek to consolidate, by counterclaim or otherwise, any action in which a jury
trial has been waived with any other action in which a jury trial cannot be or
has not been waived. These provisions shall not be deemed to have been modified
in any respect or relinquished by Bank except by written instrument executed by
both Borrower and Bank.
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SIGNATURE PAGE OF WINDROSE MEDICAL PROPERTIES, L.P.
TO CREDIT NOTE
WINDROSE MEDICAL PROPERTIES, L.P., a Virginia
limited partnership
By: Windrose Medical Properties Trust, a Maryland
real estate investment trust, its general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Xxxxxxxxx X. Xxxxxx, President
STATE OF INDIANA )
)SS:
COUNTY OF __________ )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxxxxx X, Xxxxxx, known to me to be the President of Windrose
Medical Properties Trust, a Maryland real estate investment trust, the General
Partner of WINDROSE MEDICAL PROPERTIES, L.P., a Virginia limited partnership,
and acknowledged the execution of the foregoing for and on behalf of said real
estate investment trust for and on behalf of said limited partnership.
Witness my hand and Notarial Seal, this 27 day of September, 2002.
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Notary Public - Signature
Xxxxxxx Xxxxxxxxxx
Notary Public - Printed
My Commission Expires: My County of Residence:
April 12, 2010 Xxxxxx
