EXHIBIT 10.45
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FORM OF SWING LOAN NOTE
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SWING LOAN NOTE
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$10,000,000 July , 1998
FOR VALUE RECEIVED, the undersigned, MONARCH PROPERTIES, LP, a Delaware
limited partnership ("Borrower") promises to pay to the order of SOUTHTRUST
BANK, NATIONAL ASSOCIATION, a national banking association (the "Lender"), the
lesser of the principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000), or
so much thereof as may have been advanced by Lender from time to time, and not
repaid, on the dates and at the time set forth in the Credit Agreement, together
with interest on the unpaid principal amount of this Note on the dates and at
the rate or rates provided for in the Credit Agreement. All payments of
principal and interest shall be made in lawful money of the United States in
immediately available funds at the office of SouthTrust Bank, National
Association, as Agent, 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Specialized Health Care Lending, or at such other place or places and
to such account or accounts as the Agent may direct from time to time by notice
to the Borrower in accordance with the Credit Agreement.
This Note is the Swing Note referred to in and is issued pursuant to
the Credit Agreement dated July , 1998, by and among the Borrower, MP Operating,
Inc. and Monarch Properties, Inc., as Guarantors, SouthTrust Bank, National
Association, as Agent, and the lenders parties thereto as Lenders (as the same
may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"). Reference is hereby made to the Credit Agreement for a
statement of the terms and conditions governing this Note, including those
related to voluntary and mandatory prepayment of this Note and acceleration of
the maturity hereof. Capitalized terms used in this Note and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
The date and amount of each Advance under this Note, each payment and
prepayment made on account of principal of each such Advance and each payment of
interest shall be recorded by Lender on its books, and such books shall be
presumed to be correct and accurate absent manifest error. Failure by Xxxxxx to
make such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing hereunder.
In no event shall the amount of interest due or payable hereunder
(including interest calculated at the Default Rate) exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently paid by Borrower or inadvertently received by Lender or Agent,
then such excess sum shall be credited as a payment of principal, unless Lender
elects to have such excess sum refunded to Borrower forthwith, which refund
Borrower hereby agrees to accept. It is the express intent hereof that Borrower
not pay and Lender or Agent not receive, directly or indirectly, interest in
excess of that which may be legally paid by Borrower under applicable law.
With respect to the amounts due under this Note, Borrower waives the
following to the fullest extent permitted by law:
(1) 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;
(2) 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
(3) Any further receipt for or acknowledgment of any
collateral now or hereafter deposited as security for the obligations
hereunder.
Lender shall not by any act, delay, omission, or otherwise be deemed to
have waived any of its rights or remedies hereunder, and no waiver of any kind
shall be valid unless in writing and signed by Xxxxxx. All rights and remedies
of Lender under the terms of this Note and applicable statutes or rules of law
shall be cumulative and may be exercised successively or concurrently. Xxxxxxxx
agrees that, as of the date hereof, and as of the date of each Advance, there
are no defenses, equities, or setoffs with respect to the obligations set forth
herein.
The obligations of Borrower hereunder shall be binding upon and
enforceable against Xxxxxxxx and its successors and assigns, and shall inure to
the benefit of Lender and its successors and assigns.
Any provision in this Note which may be unenforceable or invalid under
any law shall be ineffective to the extent of such unenforceability or
invalidity without affecting the enforceability or validity of any other
provision hereof.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF ALABAMA. BORROWER ACKNOWLEDGES THAT THIS NOTE IS BEING HELD
IN THE STATE OF ALABAMA AND THAT BORROWER HAS SUFFICIENT MINIMUM CONTACTS WITH
THE STATE OF ALABAMA FOR PURPOSES OF CONFERRING JURISDICTION ON THE FEDERAL AND
STATE COURTS PRESIDING IN JEFFERSON COUNTY, ALABAMA, AND BORROWER CONSENTS TO
THE JURISDICTION OF SUCH FEDERAL AND STATE COURTS IN ANY ACTION INVOLVING THE
RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER PURSUANT TO THIS NOTE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY WAIVES ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR
CAUSE OF ACTION (I) ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS
NOTE OR THE INDEBTEDNESS EVIDENCED HEREBY, OR (II) IN ANY WAY CONNECTED WITH OR
PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES HERETO
WITH RESPECT TO THIS NOTE OR THE INDEBTEDNESS EVIDENCED HEREBY OR
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IN CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY OR
THE EXERCISE OF ANY PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE
FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. XXXXXXXX AGREES THAT XXXXXX MAY FILE A COPY OF
THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED AGREEMENT OF BORROWER IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY,
AND THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY
WHATSOEVER BETWEEN BORROWER AND XXXXXX SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the undersigned Xxxxxxxx has caused this instrument
to be properly executed and delivered as of the day and year first above
written.
MONARCH PROPERTIES, LP,
a Delaware limited partnership
By: MP Operating, Inc.,
a Delaware corporation
By:
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Xxxxxxx Xxxxxxx
Its Chief Financial Officer
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