RENEWAL TERM NOTE
$3,990,000.00 Arcadia, Florida
Loan #03-75-90-454892-01 Effective April 1, 1998
FOR VALUE RECEIVED, Orange-co, Inc., a Florida Corporation
and Orange-co of Florida, Inc., a Florida Corporation (hereafter
"Borrower" and if more than one, jointly and severally), promise
to pay to the order of Farm Credit of Southwest Florida ACA, its
successors and/or assigns (hereafter "Lender") at the office of
the Lender at P. O. Box 1070, Arcadia, Florida 34265, or such
other place as the holder hereof may designate in writing, in
immediately available funds, the principal sum of Three Million
Nine Hundred Ninety Thousand and 00/100 ($3,990,000.00) Dollars,
or so much thereof as may be advanced from time to time, payable
at the Maturity Date (as described below).
Interest. Borrower shall pay interest to the order of
Lender on the principal amount outstanding from time to time from
and including the date hereof until payment in full. Except as
otherwise provided below in this Note, interest due hereunder
shall accrue under the method selected by Xxxxxxxx below:
- At a fixed rate for a fixed period of time (not to exceed the
duration of the note) based upon an equivalent length Treasury
note plus 225 basis points. Interest shall accrue and be
computed on the basis of a year of 365 or 366 days, as
applicable, based upon actual days elapsed in each year, or;
- At the LIBOR Variable Rate. For purposes of this Note, "LIBOR
Variable Rate" means a variable rate per annum equal to the three
(3) month London Interbank Offered Rate (hereafter "LIBOR"), as
published in The Wall Street Journal on the 15th day of each
month, plus two percent (2.0%) (two hundred basis points). The
LIBOR Variable Rate shall change on the first day of each month,
if necessary, based upon the LIBOR rate published on the 15th day
of the preceding month (if such rate is not published on the 15th
day of the preceding month, then the last published rate prior to
the 15th day shall prevail). If the LIBOR rate should no longer
be published, Lender, in the exercise of reasonable judgment,
shall substitute another means of determining an annual interest
rate which shall apply thereafter. Lender will give Borrower
written notice of such substitution. Interest shall accrue and
be computed on the basis of a year of 365 or 366 days, as
applicable, based upon actual days elapsed in each year.
Anything contained herein to the contrary notwithstanding,
if for any reason, the effective rate of interest on this Note,
should exceed the maximum lawful rate, any sums of interest which
have been collected in excess of such maximum lawful rate shall
be applied as a credit against the unpaid balance due hereof.
Repayment of Principal and Interest. Principal, interest
and other charges due hereunder are payable in United States
dollars, without offset or deduction of any kind. At Lender's
option, any repayments of this Note other than by United States
currency will not be credited until Xxxxxx receives collected
funds. The principal shall be payable quarter-annually in the
amount of $190,000.00, beginning July 1, 1998, and continuing on
the like day of each calendar quarter thereafter for a total of
21 consecutive quarterly principal payments. The accrued
interest shall be payable monthly beginning on July 1, 1998, and
on the first day of each successive month thereafter during the
term of this Note and continuing so long as there is any
principal amount or accrued interest outstanding, with all
outstanding principal and accrued interest to be paid in full on
the Maturity Date of July 1, 2003.
Default Interest Rate. If any installment of interest or
principal is not paid when due and remains unpaid for thirty days
(30) days or more, or if any other event of default under the
Commitment Letter or dated March 11, 1998 or Loan Agreement
dated April 19, 1993 or any other loan documents associated with
the original note dated April 19, 1993 and all extensions and
modifications thereto (herein collectively referred to as the
Loan Documents) shall occur and continue uncured as provided
under the Loan Documents, the applicable interest rate hereunder,
with or without notice from Lender, shall be increased to the
Default Rate as provided in the Loan Documents until such default
is cured, whereupon the interest rate shall revert to the
original amount set forth under this Note; provided however, that
in no event shall the default interest rate together with late
charges charged hereunder, exceed the maximum rate allowed by
law.
Late Charges. In the event any installment of principal or
interest is overdue for a period of ten (10) days, Xxxxxxxx
agrees to pay Lender a late charge of one and one-half percent
(1.50%) of the overdue installment; provided, however, in no
event shall late charges, together with the default interest rate
charged hereunder, exceed the rate allowed by law.
Prepayments of Principal. Borrower, at its option, subject
to the limitations contained in the Loan Documents and the
payment of any applicable Prepayment Premium as set forth in the
Loan Documents and the payment of accrued interest to the date of
prepayment, may prepay, all or part of the principal this Note.
All such prepayments shall be applied in the inverse order of
maturity without suspension of regularly scheduled payments due
under this Note.
This Note is secured by a mortgage and associated security
agreements dated April 19, 1993, as modified, ("Mortgage") and
the terms and conditions of the Mortgage are incorporated herein
by reference and Lender is entitled to the benefits thereof. The
holder of this Note may enforce the agreements of Borrower
contained in the Loan Documents and Mortgage and may exercise the
remedies provided for therein or otherwise available at law or in
equity.
Upon the occurrence of an event of default as described in
the Loan Documents or the Mortgage, any principal amounts
advanced under the Note, interest accrued thereon, and other
charges due hereunder or under the Loan Documents, may be
declared to be immediately due and payable as provided in the
Loan Documents.
This Note may be enforced in any court or other tribunal
having jurisdiction over the subject matter hereof, and Borrower
shall pay to the holder hereof on demand such amounts in United
States dollars as shall be sufficient to pay the enforcement
costs and expenses of such holder, including, without limitation,
reasonable attorney's fees and expenses, including those
attorney's fees and expenses incurred on appeal or in the event
the holder takes actions to protects its interest hereunder in
proceedings in bankruptcy. As used herein, attorney's fees shall
include a separate award for paralegal or legal assistant's fees.
Such costs, expenses and attorney's fees shall become part of the
indebtedness secured by the Mortgage and shall draw interest from
the date incurred until paid at the applicable Default Rate of
interest provided in the Loan Documents.
No reference herein to the Loan Documents and no provision
of this Note or the Loan Documents shall alter or impair the
obligation of Borrower, which is absolute and unconditional, to
pay the principal of and interest (and any default interest rate
or other charges due) on this Note as provided herein.
Borrower shall be in default under this Note upon the
happening of any of the following events, circumstances or
conditions; namely:
(1) Borrower fails to make payment of any principal,
interest, or other amount due on any indebtedness owed Lender
under this Note or any of the Loan Documents, or fails to make
any other payment to Lender as contemplated thereunder either by
the terms hereof or otherwise.
(2) Any Borrower defaults under any other loan with Lender
in which such Borrower is a maker or a guarantor or fails to make
payment on any contract obligation in excess of $50,000.00 or of
principal or interest on any indebtedness in excess of $50,000.00
other than that created under the Loan Documents, whether owed to
Lender or others, beyond any period of grace provided with
respect thereto or defaults in the performance of any other
agreement, or condition contained in any agreement under which
any such other indebtedness is created, or there is otherwise a
default or event of default thereunder, if the effect of any such
failure or default is to cause, or permit the holder or holders
of such indebtedness (or a trustee or other person or entity
acting in behalf of such holder or holders) to cause such
indebtedness to become due prior to its stated maturity.
(3) Any representation or warranty made or deemed made by
any Borrower herein or in any writing furnished in connection
with or pursuant to the Loan Documents shall be false in any
material respect on the date when made or when deemed made.
(4) Any Borrower defaults in the performance or observance
of or breaches any agreement, covenant, or condition binding on
Borrower contained in the Mortgage or Loan Documents, or there is
otherwise a default or event of default under the Mortgage or
Loan Documents.
(5) A default by any Borrower in the performance or
observance of a provision of any lease, contract, agreement,
mortgage, promissory note, instrument, or other obligation or
commitment in excess of $50,000.00 to which Borrower is a party
or in respect of which Borrower is obligated.
(6) Liquidation or dissolution of any Borrower, suspension
of the business of any Borrower, or the filing or commencement by
any Borrower of a voluntary petition, case, proceeding or other
action seeking reorganization, arrangement, readjustment of its
debts or any other relief under any existing or future law of any
jurisdiction, domestic or foreign, state or federal, relating to
bankruptcy, insolvency, reorganization or relief of debtors, or
any other action of any Borrower indicating its consent to,
approval of, or acquiescence in, any such petition, case,
proceeding or other action seeking to have an order for relief
entered with respect to Borrower or its debts; the application by
any Borrower for, or the appointment, by consent or acquiescence
of, a receiver, trustee, custodian or other similar official for
any Borrower or for all or a substantial part of its property;
the death of any Borrower; the making by any Borrower of an
assignment for the benefit of creditors; the inability of any
Borrower, or the admission by any Borrower in writing of its
inability, to pay its debts as they mature.
(7) Commencement of an involuntary petition, case,
proceeding, or other action against any Borrower under the
Bankruptcy Code or seeking reorganization, arrangement,
readjustment of its debts, or any other relief under any existing
or future law of any jurisdiction, domestic or foreign, state or
federal, relating to bankruptcy, insolvency, reorganization, or
relief of debtors not dismissed within 30 days of the filing
thereof; or the involuntary appointment of a receiver, trustee,
custodian, or other similar official for any Borrower or for all
or a substantial part of such Borrower's property or assets; or
there shall be commenced against any Borrower any case,
proceeding, or other action seeking issuance of a warrant of
attachment, execution, distraint, or similar process against all
or any substantial part of any Borrower's assets or property
which results in the entry of an order for such relief, and the
continuance of any of such for thirty (30) days without being
vacated, discharged, stayed, bonded, or dismissed.
(8) Any report, certificate, financial statement or other
instrument delivered to Lender by any Borrower is at any time
false or misleading in any material respect.
(9) The rendition of a final judgment against any Borrower
for the payment of damages or money in an amount greater than
$50,000.00 if the same is not discharged or if a writ of
execution or similar process is issued with respect thereto and
is not stayed within the time allowed by law for filing notice of
appeal of the final judgment.
(10) The issuance of any attachment or garnishment or the
violation of any law or any act or omission by any Borrower that
results in the imposition of a lien by operation of law on any of
its property, if the lien is not discharged within ten (10) days
after it has attached.
(11) Any act or omission (formal or informal) of any
Borrower or its partners, or the officers, directors, or
shareholders of its partners resulting in the termination,
invalidation (partial or total), revocation, suspension,
interruption, or unenforceability of its partnership existence,
or its material rights, licenses, franchises, or permits, or the
transfer or disposition (whether by sale, lease, or otherwise) to
any person of all or a substantial part of its property.
Each Borrower hereby waives presentment, demand, protest and
notice of any kind whatsoever. The non-exercise by the holder of
any of its rights hereunder in any particular instance shall not
constitute a waiver hereof in that or any subsequent instance.
This Note, except as governed by applicable federal law and
regulations, shall be construed in accordance with and governed
by the laws of the State of Florida.
XXXXXXXX AND XXXXXX XXXXXX KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH THE LOAN DOCUMENTS AND ANY OTHER DOCUMENT
EXECUTED IN CONJUNCTION WITH THE LOANS HEREUNDER, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR
WRITTEN), OR ACTION OF EITHER PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO ANY LOAN
TRANSACTIONS HEREUNDER.
This Note renews that certain $7,600,000.00 Promissory Note
from Borrowers to Lender dated April 19, 1993, and is exempt from
documentary stamp taxes.
Agreed to effective this April 1, 1998, given and under the
hand and seal of the undersigned.
Orange-co, Inc., a Florida Corporation
By:/s/ Xxxx Xxxxxx
-----------------------------------(SEAL)
Xxxx Xxxxxx, its President
Tax Identification Number: 00-0000000
By:/s/ Xxxx Xxxxxxxxxxx
-----------------------------------(SEAL)
Xxxx Xxxxxxxxxxx, its Vice President and
Chief Financial Officer
Orange-co of Florida, Inc., a Florida Corporation
By:/s/ Xxxx Xxxxxx
-----------------------------------(SEAL)
Xxxx Xxxxxx, its President
Tax Identification Number:00-0000000
By:/s/ Xxxx Xxxxxxxxxxx
-----------------------------------(SEAL)
Xxxx Xxxxxxxxxxx, its Vice President and
Chief Financial Officer
