SUNTRUST Commercial Note
Borrower: Xxxxx Holding Corporation Date: April 23, 2004
Borrower Address: 0000 Xxxxxx Xxx
Xxxxxxxx, XX 00000-6714
Loan Amount: Two Million, Eight Hundred Seventy Thousand,
One Hundred Fifty-Two Dollars and no cents
($2,870,152.00)
Account No.: 00000000 Note No.: 34 Officer: , 20896
For value received, the borrower(s) named above, whether one or more, (the
"Borrower"), jointly and severally promise to pay to the order of SunTrust Bank
("SunTrust") at any of its offices, or at such place as SunTrust may in writing
designate, without offset in U.S. Dollars and in immediately available funds,
the Loan Amount shown above, or the total of all amounts advanced under this
Note if less than the full Loan Amount is advanced, plus interest and any other
amounts due, upon the terms specified below.
Repayment Terms: 119 payments of principal plus accrued interest
beginning May 23, 2004 and continuing at monthly time
intervals thereafter. A final payment of the unpaid
principal plus accrued interest is due and payable on
April 23, 2014 (the maturity date). (See attached
amortization schedule for the principal payment
amounts.)
Interest
Interest will accrue on an actual/360 basis (on the actual number of days
elapsed over a year of 360 days). Interest shall accrue from the date of
disbursement on the unpaid balance and shall continue to accrue until this Note
is paid in full.
This is a variable rate transaction. The interest rate is prospectively subject
to increase or decrease without prior notice and adjustments in the payment
schedule may be made to reflect changes in the interest rate.
Subject to the above, interest per annum payable on this Note (the "Rate") shall
be a variable rate based on the following Index:
The one month LIBOR Rate as defined on the attached Addendum A, LIBOR Index Rate
Addendum.
The Rate shall be equal to the Index plus 1.90% per annum. Adjustments to the
Rate shall be effective monthly on the same day of each month beginning May 23,
2004 or the next business day if such date does not fall on a business day. The
maximum Rate shall not exceed any maximum rate permitted by applicable law.
Collateral
Unless otherwise agreed in writing, any collateral pledged to SunTrust to secure
any of the existing or future liabilities of the Borrower to SunTrust shall also
secure this Note. To the extent permitted by law, the Borrower grants to
SunTrust a security interest in and a lien upon all deposits and investments
maintained by the Borrower with SunTrust and any affiliates thereof.
Collateral for this Note includes, but is not limited to, the following:
All assets, including but not limited to, accounts, inventory, furniture,
fixtures and equipment, general intangibles, instruments, documents and chattel
paper, now existing or hereafter acquired and all proceeds and products thereof
as more particularly described in a Security Agreement executed by Xxxxx Holding
Corporation dated this date.
Deed to Secure Debt dated April 23, 2004 covering real estate known as 000
Xxxxxxxxxx Xxxxxxx, Xxxx, XX 00000 and as more particularly described therein.
All of the foregoing security is referred to collectively as the "Collateral".
Unless otherwise agreed in writing, the Collateral is security for the payment
of this Note and any other liability (including overdrafts and future advances)
of the Borrower to SunTrust, however evidenced, now existing or hereafter
incurred, matured or unmatured, direct or indirect, absolute or contingent,
several, joint, or joint and several, including any extensions, modifications or
renewals. The proceeds of any Collateral may be applied against the liabilities
of the Borrower to SunTrust in such order as SunTrust deems proper.
Loan Purpose And Updated Financial Information Required
The Borrower warrants and represents that the loan evidenced by this Note is
being made solely for the purpose of acquiring or carrying on a business,
professional or commercial activity or acquiring real or personal property as an
investment (other than a personal investment) or for carrying on an investment
activity (other than a personal investment activity). The Borrower agrees to
provide to SunTrust updated financial information, including, but not limited
to, tax returns, and current financial statements in form satisfactory to
SunTrust, as well as additional information, reports or schedules (financial or
otherwise), all as SunTrust may from time to time request.
Representations and Warranties
This Note has been duly executed and delivered by Xxxxxxxx, constitutes
Borrower's valid and legally binding obligations and is enforceable in
accordance with its terms against Borrower. The execution, delivery and
Page 1 of 4
performance of this Note and the consummation of the transaction contemplated
will not, with or without the giving of notice or the lapse of time, (a) violate
any material law applicable to Borrower, (b) violate any judgment, writ,
injunction or order of any court or governmental body or officer applicable to
Borrower, (c) violate or result in the breach of any material agreement to which
Borrower is a party nor (d) violate Xxxxxxxx's charter or bylaws. No consent,
approval, license, permit or other authorization of any third party or any
governmental body or officer is required for the valid and lawful execution and
delivery of this Note.
Default, Acceleration And Setoff
As used herein the term "Obligor" shall individually and collectively refer to
the Borrower and any person or entity that is primarily or secondarily liable on
this Note and any person or entity that has conveyed or may hereafter convey any
security interest or lien to SunTrust in any real or personal property to secure
payment of this Note. An "event of default" shall occur hereunder upon the
occurrence of any one or more of the following events or conditions:
(a) the failure by any Obligor to pay when due, whether by acceleration or
otherwise, any amounts owed under this Note;
(b) the occurrence of any event of default under any agreement or loan
document executed in conjunction with this Note or the failure of any
Obligor to perform any covenant, promise or obligation contained in
this Note or any other agreement to which any Obligor and SunTrust are
parties;
(c) the breach of any of any Obligor's representations or warranties
contained in this Note or any other agreement with SunTrust;
(d) the failure of any Obligor to pay when due any amount owed to any
creditor other than SunTrust under a written agreement calling for the
payment of money;
(e) the death, declaration of incompetency, dissolution, liquidation,
merger, consolidation, termination or suspension of usual business of
any Obligor;
(f) any person or entity, or any group of related persons or entities,
shall have or obtain legal or beneficial ownership of a majority of
the outstanding voting securities or rights of any Obligor that is not
a natural person, other than any person or entity, or any group of
related persons or entities that has such majority ownership as of the
date of this Note;
(g) the insolvency or inability to pay debts as they mature of any
Obligor, the application for the appointment of a receiver for any
Obligor, the filing of a petition or the commencement of a proceeding
by or against any Obligor under any provision of any applicable
Bankruptcy Code or other insolvency law, or statute, or any assignment
for the benefit of creditors by or against any Obligor;
(h) the entry of a judgment or the issuance or service of any attachment,
levy or garnishment against any Obligor or the property of any Obligor
or the repossession or seizure of property of any Obligor;
(i) a determination by SunTrust that a material adverse change in the
financial condition of any Obligor has occurred since the date of this
Note;
(j) any Obligor commits fraud or makes a material misrepresentation at any
time in connection with this Note or any Collateral;
(k) any deterioration or impairment of the Collateral or any decline or
depreciation in the value of the Collateral which causes the
Collateral in the judgment of SunTrust to become unsatisfactory as to
character or value;
(l) the sale or transfer by any Obligor of all or substantially all of
such Xxxxxxx's assets other than in the ordinary course of business;
(m) the occurrence of any event of default under any other loan document
or agreement executed in connection with this transaction; or
(n) any other act or circumstances leading SunTrust to deem itself
insecure.
If an event of default occurs, or in the event of non-payment of this Note in
full at maturity, the entire unpaid balance of this Note shall, at the option of
SunTrust, become immediately due and payable, without notice or demand and no
future advances will be permitted. Upon the occurrence of an event of default,
SunTrust, at its option, may charge interest on the unpaid balance at the Rate
plus 4.00% per annum (the "Default Rate") until paid in full. To the extent
permitted by law, upon default SunTrust will have the right, in addition to all
other remedies permitted by law, to set off the amount due under this Note or
due under any other obligation to SunTrust against any and all accounts, whether
checking or savings or otherwise, credits, money, stocks, bonds or other
security or property of any nature whatsoever on deposit with, held by, owed by,
or in the possession of, SunTrust to the credit of or for the account of any
Obligor, without notice to or consent by any Obligor. The remedies provided in
this Note and any other agreement between SunTrust and any Obligor are
cumulative and not exclusive of any other remedies provided by applicable law.
Late Charges And Other Authorized Fees And Charges
If any portion of a payment is at least 10 days past due, the Borrower agrees to
pay a late charge of the lesser of $50.00 or 5% of the amount which is past due.
Unless prohibited by applicable law, the Borrower agrees to pay the fee
established by SunTrust from time to time for returned checks if a payment is
made on this Note with a check and the check is dishonored for any reason after
the second presentment. In addition to any other amounts owed under the terms of
this Note, the Borrower agrees to pay those fees and charges disclosed in the
attached Disbursements and Charges Summary which is incorporated in this Note by
reference and, as permitted by applicable law, the Borrower agrees to pay the
following: (a) all expenses, including, without limitation, any and all costs
incurred by SunTrust related to default, all court costs, and out-of-pocket
collection expenses and attorneys' fees, not to exceed 15% of the amount of the
unpaid principal balance plus accrued interest and other charges due at the time
this Note is referred to an attorney for collection, whether suit be brought or
not, incurred in collecting this Note; (b) all costs incurred in evaluating,
preserving or disposing of any Collateral granted as security for the payment of
this Note, including the cost of any audits, appraisals, appraisal updates,
reappraisals or environmental inspections which SunTrust from time to time in
its sole discretion may deem necessary; (c) any premiums for property insurance
purchased on behalf of the Borrower or on behalf of the owner(s) of any
Collateral pursuant to any security instrument relating to any Collateral; (d)
any expenses or costs incurred in defending any claim arising out of the
execution of this Note or the obligation which it evidences, or otherwise
involving the employment by SunTrust of attorneys with respect to this Note and
the obligations it evidences; (e) any tax or fee due from SunTrust to any state
or other governmental agency or authority because of the execution of this Note
Page 2 of 4
or holding of this Note (including but not limited to any intangible tax or
documentary stamp tax), and (f) any other charges permitted by applicable law.
The Borrower agrees to pay such amounts on demand or, at SunTrust's option, such
amounts may be added to the unpaid balance of the Note and shall accrue interest
at the stated Rate. Upon the occurrence of an event of default, or after demand
and failure to pay if this Note is payable on demand, interest shall accrue at
the Default Rate.
Prepayment Provision
Borrower may make a prepayment in any amount at any time without penalty.
Waivers
The Borrower and each other Obligor waive presentment, demand, protest, notice
of protest and notice of dishonor and waive all exemptions, whether homestead or
otherwise, as to the obligations evidenced by this Note. The Borrower and each
other Obligor waive any rights to require SunTrust to proceed against any other
Obligor or any Collateral before proceeding against the Borrower or any of them,
or any other Obligor, and agree that without notice to any Obligor and without
affecting any Obligor's liability, SunTrust, at any time or times, may grant
extensions of the time for payment or other indulgences to any Obligor or permit
the renewal or modification of this Note, or permit the substitution, exchange
or release of any Collateral for this Note and may add or release any Obligor
primarily or secondarily liable. The Borrower and each other Obligor agree that
SunTrust may apply all monies made available to it from any part of the proceeds
of the disposition of any Collateral or by exercise of the right of setoff
either to the obligations under this Note or to any other obligations of any
Obligor to SunTrust, as SunTrust may elect from time to time.
Waiver of Jury Trial
THE BORROWER AND SUNTRUST HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT
EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION, WHETHER
IN CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED HEREON OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS NOTE AND ANY OTHER DOCUMENT OR INSTRUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS NOTE, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUNTRUST ENTERING
INTO OR ACCEPTING THIS NOTE. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF SUNTRUST, NOR SUNTRUST'S COUNSEL, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUNTRUST WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
Miscellaneous
All amounts received by SunTrust shall be applied to expenses, late fees and
interest before principal or in any other order as determined by SunTrust, in it
sole discretion, as permitted by law. Any provision of this Note which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Note. No amendment, modification, termination or waiver of any provision of
this Note, nor consent to any departure by the Borrower from any term of this
Note, shall in any event be effective unless it is in writing and signed by an
authorized officer of SunTrust, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure or delay on the part of SunTrust to exercise any right, power
or remedy under this Note shall be construed as a waiver of the right to
exercise the same or any other right at any time. If the Rate is tied to an
external index and the index becomes unavailable during the term of this loan,
SunTrust may, in its sole and absolute discretion, designate a substitute index
with notice to the Borrower. The captions of the paragraphs of this Note are for
convenience only and shall not be deeded to constitute a part hereof or used in
construing the intent of the parties. All representations, warranties, covenants
and agreements contained herein or made in writing by Xxxxxxxx in connection
herewith shall survive the execution and delivery of this Note and any other
agreement, document or writing relating to or arising out of any of the
foregoing. All notices or communications given to Borrower pursuant to the terms
of this Note shall be in writing and given to Xxxxxxxx at Borrower's address
stated above unless Borrower notifies SunTrust in writing of a different
address. Unless otherwise specifically provided herein to the contrary, such
written notices and communications shall be delivered by hand or overnight
courier service, or mailed by first class mail, postage prepaid, addressed to
the Borrower at the address referred to herein. Any written notice delivered by
hand or by overnight courier service shall be deemed given or received upon
receipt. Any written notice delivered by U.S. Mail shall be deemed given or
received on the third (3rd) business day after being deposited in the U.S. Mail.
Liability, Successors And Assigns And Choice Of Law
Each Borrower shall be jointly and severally obligated and liable on this Note.
This Note shall apply to and bind each of the Borrower's heirs, personal
representatives, successors and permitted assigns and shall inure to the benefit
of SunTrust, its successors and assigns. Notwithstanding the foregoing, Borrower
shall not assign Borrower's rights or obligations under this Note without
SunTrust's prior written consent. The Borrower agrees that certain material
events and occurrences relating to this Note bear a reasonable relationship to
the laws of Georgia. This Note shall be governed by the laws of Georgia and,
unless applicable law provides otherwise, in the event of any legal proceeding
arising out of or related to this Note, the Borrower consents to the
jurisdiction and venue of any court located in Georgia.
Documentary and Intangible Taxes
In the event that any tax is due from SunTrust to any state or other
governmental agency or authority because of the execution or holding of this
Note (including but not limited to any intangible tax or documentary stamp tax),
the Borrower shall, upon demand, reimburse SunTrust for any such tax paid.
Page 3 of 4
By signing below under seal, the Borrower agrees to the terms of this Note and
the disbursement of proceeds as described in the Disbursements and Charges
Summary provided in connection with this transaction.
Xxxxx Holding Corporation
/s/ XXXXXXX XXXXX
--------------------------
Xxxxxxx Xxxxx, President
Page 4 of 4
