SWINGLINE NOTE Exhibit 10(a)(2)(E)
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$2,500,000.00 December 28, 2001
FOR VALUE RECEIVED, the undersigned, Xxxxx Equity, Inc., a Florida
corporation (the "Borrower"), promises to pay, without offset or counterclaim,
to the order of Fleet National Bank (hereinafter, together with its successors
in title and assigns, called the "Swingline Lender") at the head office of Fleet
National Bank, as Agent (the "Agent") at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, the principal sum of Two Million Five Hundred Thousand
Dollars ($2,500,000.00) or, if less, the aggregate unpaid principal amount of
all Swingline Loans made by the Swingline Lender to the Borrower pursuant to the
Revolving Credit Loan Agreement dated as of December 28, 2001 among the
Swingline Lender, the Borrower, the other lending institutions named therein and
the Agent, as amended from time to time (the "Credit Agreement"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement. Unless otherwise provided herein, the
rules of interpretation set forth in ss.1.2 of the Credit Agreement shall be
applicable to this Note.
The Borrower also promises to pay (a) principal from time to time at
the times provided in the Credit Agreement and (b) interest from the date hereof
on the principal amount from time to time unpaid at the rates and times set
forth in the Credit Agreement and in all cases in accordance with the terms of
the Credit Agreement. Late charges and other charges and default rate interest
shall be paid by Borrower in accordance with the terms of the Credit Agreement.
The entire outstanding principal amount of this Note, together with all accrued
but unpaid interest thereon, shall be due and payable in full on the Maturity
Date. The Swingline Lender may endorse the record relating to this Note with
appropriate notations evidencing advances and payments of principal hereunder as
contemplated by the Credit Agreement.
This Note is issued pursuant to, is entitled to the benefits of, and is
subject to the provisions of the Credit Agreement. The principal of this Note is
subject to prepayment in whole or in part in the manner and to the extent
specified in the Credit Agreement. The principal of this Note, the interest
accrued on this Note and all other Obligations of the Borrower are full recourse
obligations of the Borrower, and all of its Real Estate Assets, and its other
properties shall be available for the payment and performance of this Note, the
interest accrued on this Note, and all of such other Obligations. In case an
Event of Default shall occur and be continuing, the entire unpaid principal
amount of this Note and all of the unpaid interest accrued thereon may become or
be declared due and payable in the manner and with the effect provided in the
Credit Agreement.
The Borrower and all endorsers hereby waive presentment, demand,
protest and notice of any kind in connection with the delivery, acceptance,
performance and enforcement of this Note, and also hereby assent to extensions
of time of payment or forbearance or other indulgences without notice.
This Note and the obligations of the Borrower hereunder shall be
governed by and interpreted and determined in accordance with the laws of the
Commonwealth of Massachusetts (excluding the laws applicable to conflicts or
choice of law). The Borrower has waived its right to a jury trial with respect
to any action or claim arising out of this Note pursuant to ss.24 of the Credit
Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed in its name as an instrument under seal on the date first above
written.
WITNESS: XXXXX EQUITY, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
Its Senior Vice President
