EXHIBIT 10(vi)
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REVOLVING CREDIT NOTE
$5,000,000.00 Cincinnati, Ohio
January 03, 2001
FOR VALUE RECEIVED, LASALLE HOTEL LESSEE, INC., with its principal
place of business at 0000 Xxxxxxxxxx Xxxx, Xxxxx X00, Xxxxxxxx, Xxxxxxxx
00000 ("Borrower"), promises to pay, to the order of FIRSTAR BANK, NATIONAL
ASSOCIATION ("Lender"), at its office located at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000 or such other location as Lender may from time to
time designate, the principal sum of FIVE MILLION DOLLARS (the "Total
Facility") or such lesser amount as may be advanced and outstanding
hereunder, together with interest thereon as provided below from the date
of disbursement thereof until paid, all in lawful money of the United
States of America and in immediately available funds.
1. DEFINITIONS. For purposes hereof:
1.1 Adjusted Base Rate will have the meaning set forth in the
Senior Unsecured Credit Facility.
1.2 "Adjusted Base Rate Advance" will have the meaning set forth in
the Senior Unsecured Credit Facility.
1.3 "Advance" will mean a disbursement under this Note.
1.4 "Business Day" will mean any day other than Saturday, Sunday
and any other day on which banks are required or authorized to close in
Ohio, and, if the applicable Business Day relates to a Libor Rate Advance,
other than any day on which dealings are not carried on in dollar deposits
in the London interbank market.
1.5 "Conversion" will mean the change from one Interest Rate to
another for a particular Advance in accordance with the terms of this Note.
1.6 "Default" will mean any event or condition that with notice or
lapse of time or both would constitute an event of Default.
1.7 "Default Rate" will mean two percent (2%) per annum in excess
of the then current rate of interest in effect under this Note, but not
more than the highest rate permitted by law.
1.8 "Eurocurrency Liabilities" has the meaning given to that term
in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
1.9 "Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for any such day on such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
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1.10 "Guarantor" will mean any present or future guarantor of all or
any part of this Note. Initially, LaSalle Hotel Properties and LaSalle
Hotel Operating Partnership, L.P., are Guarantors.
1.11 "Interest Period" means for each Libor Rate Advance one
calendar month.
1.12 "Interest Rate" will mean, as applicable, the Adjusted Base
Rate or Libor Rate, all subject to the applicability of the Default Rate.
All Interest Rate determinations and calculations by Xxxxxx hereunder will
be conclusive and binding absent manifest error.
1.13 "Leverage Ratio" will have the meaning set forth in the Senior
Unsecured Credit Facility.
1.14 "Libor" will have the meaning set forth in the Senior Unsecured
Credit Facility.
1.15 "Libor Rate Advance" will mean any Advance that bears interest
based upon Libor.
1.16 "Libor Reserve Requirement" will have the meaning set forth in
the Senior Unsecured Credit Facility.
1.17 "Loan Documents" will mean this note, the guarantees executed
by the Guarantors in favor of Xxxxxx and any other document executed in
connection with this Note.
1.18 "Maturity date" has the meaning given such term in Section 4 of
this Note entitled "Payments and Application of Payments".
1.19 "Parent" means LaSalle Hotel Properties, a Maryland trust.
1.20 "Prime Rate" will have the meaning set forth in the Senior
Unsecured Credit Facility.
1.21. "Senior Unsecured Credit Agreement" will mean the Second
Amended and Restated Senior Unsecured Credit Agreement dated as of November
13, 2000 among LaSalle Hotel Operating Partnership, L.P., as the borrower,
Societe Generale, Southwest Agency, as Administrative Agent and the Lenders
named therein, and all amendments thereto and restatements thereof.
2. RATE OF INTEREST.
2.1 Subject to the applicability of the Default Rate as provided
below, the outstanding principal balance of each Advance will bear interest
at a rate per annum as follows: (i) in the case of an Adjusted Base Rate
Advance, at a fluctuating rate per annum equal to the Adjusted Base Rate
Applicable Margin (as defined in Section 2.3, below) plus the Adjusted Base
Rate in effect from time to time; or (ii) in the case of a Libor Rate
Advance, at a rate per annum equal to Libor Rate Applicable Margin (as
defined in Section 2.3, below) plus the Libor Rate for the applicable
Interest Period. All interest calculations under this Note will be made
based on (i) for Adjusted Base Rate Advances, a year of 365 days for the
actual number of days elapsed in each Interest Period, and (ii) for Xxxxx
Advances, a year of 360 days for the actual number of days in each Interest
Period. In no event will the rate of interest hereunder exceed 25% per
annum or the equivalent rate for a shorter or longer period.
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2.2 The Interest Rate for Advances will be as designated in writing
by Borrower to Lender from time to time. If Borrower fails to so designate
an Interest Rate for an Advance, such advance will be deemed to be an
Adjusted Base Rate Advance until and unless a proper designation is made by
Borrower pursuant to this Note.
2.3 The initial Adjusted Base Rate Applicable Margin will be .50
and the initial Libor Rate Applicable Margin will be 2.00%. Beginning with
the fiscal quarter of the Borrower ending March 31, 2001, the Adjusted Base
Rate Applicable Margin and the Libor Rate Applicable Margin will be
adjusted 45 days after the end of each fiscal quarter of the Borrower based
on the Leverage Ratio of Parent for the immediately preceding four fiscal
quarters as follows, all as determined under the Senior Unsecured Credit
Agreement:
ABR LIBOR Unused
Spread Spread Fee
Leverage Ratio (bps) (bps) (bps)
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Less than or equal to 35% 25 175.0 20
Greater than 35% but
less than or equal to 40% 37.5 187.0 25
Greater than 40% but
less than or equal to 45% 50.0 200.0 25
Greater than 45% but
less than or equal to 50% 62.5 212.5 25
3. ADVANCES AND FEES.
3.1 Upon the execution of this Note, Borrower will pay Lender a fee
of $32,500. In addition Borrower will pay Lender an Unused Fee computed
from the date hereof through the Maturity Date on the average daily amount
by which the Total Facility exceeds the outstanding amount of Advances
times the per annum rate set forth above in Section 2.3 under the chart
heading "Unused Fee" based on a year of 360 days. Such fees will be due
and payable quarterly in arrears 30 days after the last Business Day of
each calendar quarter and on the Maturity Date.
3.2 Advances will be made hereunder pursuant to the Treasury
Management Services Master Agreement and other agreements related thereto
between Borrower and Lender. Initially, the target balance under the
Treasury Management Service Agreement and related documents will be
$100,000 and will be adjusted from time to time as agreed to by Xxxxxxxx
and Lender. In the event of any conflict between terms of this Note and
the Treasury Management Services Master Agreement and such other agreements
related thereto, the terms of this Note will control.
3.3 Borrower may on any Business Day elect to convert all or any
portion of any Advance into an Advance or Advances having a different
Interest Rate ("Conversion") upon delivering to Lender of a written notice
requesting such Conversion not later than 11 o'clock a.m. (Cincinnati time)
on the Business Day of the proposed Conversion; provided, however, that any
Conversion of any Libor Rate Advance will be made effective only on the
last day of the Interest Period applicable thereto prior to Xxxxxx's
receipt of such request for Conversion.
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3.4 Borrower may borrow, repay and reborrow under this Note subject
to the terms, conditions and limits set forth herein. Lender is authorized
to record in its books and records the date and amount of each Advance and
payment hereunder, Interest Rate of each Advance and other information
related thereto, which books and records will constitute PRIMA FACIE
evidence of the accuracy of the information so recorded; PROVIDED, however,
that failure of Lender to record, or any error in recording, any such
information will not relieve Borrower of any of its obligations under this
Note or any of the other Loan Documents.
3.5 Lender hereby is authorized, at any time and from time to time,
to make an advance under this Note for the payment on behalf of Borrower of
any principal, interest, fees or other sums due under this Note or any of
the Loan Documents. Notwithstanding the foregoing, Lender is not obligated
to make any such Advance.
3.6 Each request of Borrower for a Conversion or an Advance will be
subject to all of the terms and conditions of this Note and the Loan
Documents. Without limiting the generality of the foregoing, Lender will
have no duty to make any Advance or allow any Conversion if after giving
effect thereto the aggregate outstanding principal balance under this Note
would exceed the Total Facility, or any other maximum amount limits set
forth herein or in any of the Loan Documents, or if any other term or
condition applicable hereunder or thereunder is not satisfied; and Borrower
also will not be entitled to any Advance or Conversion under this Note
after (i) maturity (whether by stated maturity, acceleration or otherwise),
(ii) any Event of Default, or (iii) any Default.
3.7 If at any time or times Lender determines (which determination
will be conclusive and binding) that (i) by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do
not exist for ascertaining the Libor Rate, or (ii) that the Libor Rate will
not adequately and fairly reflect the cost to Lender of maintaining or
funding Libor Rate Advances, Lender promptly will give notice of such
determination and the basis therefor to Borrower. If such notice is given,
and until such notice has been withdrawn by Lender, no additional Libor
Rate Advances will be made and no additional Conversions to Libor Rate
Advances will be permitted.
3.8 Notwithstanding any other provisions herein, if any law,
treaty, rule or regulation, or determination of a court, governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof (whether or not having the force
of law), or any change therein or in the interpretation or application
thereof, makes it unlawful or impossible for Lender to make or maintain
Libor Rate Advances, no additional Libor Rate Advances will be made, no
additional Conversions thereto will be permitted and outstanding Libor Rate
Advances will be converted to Adjusted Base Rate Advances on either (i) the
last day of the applicable Interest Period for such Advance if Lender may
continue to maintain such Advance until such day or (ii) immediately if
Lender may not continue to maintain such Advances.
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4. PAYMENTS AND APPLICATION OF PAYMENTS.
4.1 Accrued interest will be due and payable the first day of each
month and will be paid by a debit to Borrower's checking account with
Lender if sufficient funds are available; and if sufficient funds are not
available, amounts due will be paid by an Advance hereunder provided such
Advance will not cause the principal outstanding hereunder to exceed the
Total Facility.
4.2 The entire outstanding principal balance of all Advances and
all accrued and unpaid interest thereon will be due and payable on December
31, 2003 (the "Maturity Date").
4.3 Payments received will be applied in the following order: (i)
to repayment of any amounts owed to Lender for charges, fees and expenses
under this Agreement (including reasonable attorneys' fees), (ii) to
accrued interest, and (iii) to principal.
4.4 Prepayments of Advances in full or in part may be made under
this Note at any time; provided that each such payment will be applied in
the foregoing order and, to the extent applied to principal, will be
applied to the net balance of principal due at maturity.
5. LATE PAYMENTS. If Borrower fails to make any payment of principal,
interest or other amount coming due pursuant to the provisions of this Note
within 5 calendar days of the date due and payable, Borrower also shall pay
to Lender a late charge equal to the greater 2% of the amount of such
payment or $50.00 (the "Late Charge").
6. PROCEEDS. Borrower acknowledges that the proceeds of this Note will
be used exclusively for business or commercial purposes and no portion of
such proceeds will be used for personal, family, educational, or household
purposes.
6.1 EVENTS CAUSING NOTE TO BECOME DUE. The occurrence of any of
the following events will be deemed to be an "Event of Default" under this
Note: (i) the non-payment of any sums when due under this Note within all
applicable grace periods; (ii) the occurrence of any Event of Default (as
defined in any of the following) or a default under any of the following
that does not have a defined set of "Events of Default" and the lapse of
any notice or cure period provided with respect to such default in any of
the following: any other debt, liability or obligation to Lender of
Borrower or any Guarantor, including but not limited to any of the
foregoing arising under the Loan Documents or any other documents now or in
the future securing the obligations of Borrower or any Guarantor to Lender;
(iii) the revocation or attempted revocation, in whole or in part, of any
guarantee by any Guarantor; (iv) any representation or warranty made by
Borrower or any Guarantor to Lender in any document, including but not
limited to the Loan, is false or erroneous in any material respect; (v) the
failure of Borrower or any Guarantor to observe or perform any covenant or
other agreement with Lender contained in any document, including but not
limited to the Loan Documents and (vi) the occurrence of an Event of
Default (as defined therein) under the Senior Unsecured Credit Agreement
regardless of whether or not such event of Default is waived by the Lenders
under the Senior Unsecured Credit Agreement or whether or note the Senior
Unsecured Credit Agreement is terminated or no longer in effect.
Immediately and automatically upon any Event of Default relating to a
bankruptcy filing by or against Borrower,
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or, at the option of Lender upon the occurrence of any other
Event of Default hereunder, in either case without demand or notice of any
kind (which are hereby expressly waived): (a) the outstanding principal
balance hereunder together with all accrued and unpaid interest thereon,
and any additional amounts secured by the Loan Documents, will be
accelerated and become immediately due and payable, (b) Borrower will pay
to Lender all reasonable costs and expenses (including reasonable
attorneys' fees) incurred by Xxxxxx in connection with Xxxxxx's efforts to
collect the indebtedness evidenced hereby, (c) Lender may offset any apply
to all or any part of the indebtedness evidenced hereby all monies, credits
and other property of any nature whatsoever of Borrower now or hereafter in
the possession of, in transit to or from, under the control or custody of
or on deposit with (whether held by Borrower individually or jointly with
another party), Lender or any affiliate of Lender, and (d) Lender may
exercise from time to time any of the rights and remedies available to
Lender under the Loan Documents or applicable law. Upon and after the
occurrence of any Event of Default or the maturity of this Note (by
acceleration or otherwise), the principal balance of this Note, together
with any arrearage of interest, will bear interest until paid in full,
whether before or after judgment, at a rate per annum equal to the Default
Rate. Borrower, all other makers, co-signers and indorser waive
presentment, demand, protest, and notice of demand, protest, non-payment
and dishonor. Borrower also waives all defenses based on suretyship or
impairment of collateral.
7. MISCELLANEOUS.
7.1 Both the Late Charge and the Default Rate are imposed as
liquidated damages for the purpose of defraying Xxxxxx's expenses incident
to the handling of delinquent payments, but are in addition to, and not in
lieu of, Xxxxxx's exercise of any rights and remedies hereunder, under the
other Loan Documents or under applicable law, and any fees and expenses of
any agents or any reasonable fees and charges of any attorneys which Xxxxxx
may employ. In addition, the Default Rate reflects the increased credit
risk to Lender of carrying a loan that is in default. Xxxxxxxx agrees that
the Late Charge and Default Rate are reasonable forecasts of just
compensation for anticipated and actual harm incurred by Xxxxxx, and that
the actual harm incurred by Xxxxxx cannot be estimated with certainty and
without difficulty.
7.2 Nothing contained in this Note regarding late charges or the
Default Rate will be construed in any way to extend the due date of any
payment or waive any payment default, and each such right is in addition
to, and not in lieu of, the other any other rights and remedies of Lender
hereunder, under any of the Loan Documents or under applicable law
(including, without limitation, the right to interest, reasonable
attorneys' fees and other expenses).
7.3 This Note will bind Xxxxxxxx and the heirs, executors,
administrators, successors and assigns of Xxxxxxxx, and the benefits hereof
will inure to the benefit of Xxxxxx and its successors and assigns. All
references herein to the "Borrower" and "Lender" will include the
respective heirs, administrators, successors and assigns thereof; provided,
however, that Borrower may not assign this Note in whole or in part without
the prior written consent of Lender and Lender at any time may assign this
Note in whole or in part (but no assignment by the Lender of less than all
of this Note will operate to relieve Borrower from any duty to Lender with
respect to the unassigned portion of this Note).
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7.4 If any provision of this Note is prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision and without invalidating any other provision in this Note;
provided however, that if the provision that is the subject of such
invalidity or prohibition pertains to repayment of this Note, then, at the
option of Lender, all of the obligations hereunder will become immediately
due and payable.
7.5 Without limiting the generality of the foregoing, if from any
circumstances whatsoever the fulfillment of any provision of this Note
involves transcending the limit of validity prescribed by any applicable
usury statute or any other applicable law with regard to obligations of
like character and amount, then the obligation to be fulfilled will be
reduced to the limit of such validity as provided in such statute or law,
so that in no event will any exaction of interest be possible under this
Note in excess of the limit of such validity and the right to demand any
such excess is hereby expressly waived by Lender. As used in this
paragraph, "applicable usury statute" and "applicable law" mean such
statute and law in effect on the date hereof, subject to any change therein
that results in a higher permissible rate of interest.
7.6 No delay or failure on the part of Lender to exercise any
right, remedy or power hereunder, under any of the Loan Documents or under
applicable law will impair or waive any such right, remedy or power (or any
other right, remedy or power), be considered a waiver of or an acquiescence
in any breach, Default or Event of Default or affect any other or
subsequent breach, Default or Event of Default of the same or a different
nature. No waiver of any breach, Default or Event of Default, nor any
modification, waiver, discharge or termination of any provision of this
Note, nor consent to any departure by Borrower therefrom, will be
established by conduct, custom or course of dealing; and no modification,
waiver, discharge, termination or consent will in any event be effective
unless the same is in writing, signed by Lender and specifically refers to
this Note, and then such modification, waiver, discharge or termination or
consent will be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on Borrower in
any case will entitle Borrower to any other or further notice or demand in
the same or any similar or other circumstance.
7.7 No single or partial exercise of any right or remedy by Lender
will preclude any other or further exercise thereof or the exercise of any
other right or remedy. All remedies hereunder, under any Loan Document or
any other instrument or document now or hereafter evidencing, securing,
guaranteeing or relating to this Note, or now or hereafter existing at law
or in equity are cumulative and none of them will be exclusive of the
others or of any other right or remedy. All such rights and remedies may
be exercised separately, successively, concurrently, independently or
cumulatively from time to time and as often and in such order as Lender may
deem appropriate.
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7.8 If any ant time all or any part of any payment or transfer of
any kind received by Lender with respect to all or any part of this Note is
repaid, set aside or invalidated by reason of any judgment, decree or order
of any court or administrative body, or by reason of any agreement,
settlement or compromise of any claim made at any time with respect to the
repayment, recovery, setting aside or invalidation of all or any part of
such payment or transfer, Borrower's obligations under this Note will
continue (and/or be reinstated) and Borrower will be and remain liable, and
will indemnify, defend and hold harmless Lender for, the amount or amounts
so repaid, recovered, set aside or invalidated and all other claims,
demands, liabilities, judgments, losses, damages, costs and expenses
incurred in connection therewith. The provisions of this Section will be
and remain effective notwithstanding any contrary action which may have
been taken by Borrower in reliance upon such payment or transfer, and any
such contrary action so taken will be without prejudice to Xxxxxx's rights
hereunder and will be deemed to have been conditioned upon such payment or
transfer having become final and irrevocable. The provisions of this
Section will survive any termination, cancellation or discharge of this
Note.
7.9 Time is of the essence in the performance of this Note.
7.10 This Note has been delivered and accepted at and will be deemed
to have been made at Cincinnati, Ohio and will be interpreted and the
rights and liabilities of the parties hereto determined in accordance with
the laws of the State of Ohio, without regard to conflicts of law
principles.
7.11 Borrower hereby irrevocably agrees and submits to the exclusive
jurisdiction of any state or federal court located within Xxxxxxxx County,
Ohio, or, at the option of Lender in its sole discretion, of any state or
federal court(s) located within any other county, state or jurisdiction in
which Lender at any time or from time to time chooses in its sole
discretion to bring an action or otherwise exercise a right or remedy, and
Borrower waives any objection based on FORUM NON CONVENIENS and any
objection to venue of any such action or proceeding. Borrower hereby
irrevocably consents that all service of process be made by certified mail
directed to Borrower at its address set forth herein for notices and
service so made will be deemed to be completed the earlier of Borrower's
actual receipt thereof or five (5) business days after the same has been
deposited in U.S. Mails, postage prepaid. Nothing contained herein will
prevent Lender from serving process in any other manner permitted by law.
Borrower and Xxxxxx each waive any right to trial by jury in any action or
proceeding relating to this Note, the Loan Documents, the collateral
described therein, or any actual or proposed transaction or other matter
contemplated in or relating to any of the foregoing.
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LASALLE HOTEL LESSEE, INC.
By: /s/ Xxxx X. Xxxxx
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Print Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 3rd day of January, 2001, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxx X. Xxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individuals, or the persons upon
behalf of which the individual acted, executed the instrument.
/s/ Xxxxx X. Xxxxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxxxx
Notary Public
Xxxxxxxxxx County
Maryland
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