EXHIBIT 10.10.1
RENEWAL FLOORPLAN LINE-OF-CREDIT NOTE
$1,750,000.00 ___________, 1997
FOR VALUE RECEIVED, the undersigned, TALLAHASSEE IMPORTS,
INC., a Florida corporation, and INFINITI OF TALLAHASSEE, INC., a Florida
corporation (collectively, the "Borrower"), jointly and severally, promise to
pay to the order of SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United
States of America (the "Lender"), having a mailing address of Post Office Box
4999, Orlando, Florida 32802-4999 (Attention: Wholesale Finance Department),
the principal sum of ONE MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS
($1,750,000.00), together with interest on the principal balance from time to
time remaining unpaid from the date hereof at the applicable interest rate
hereinafter set forth, in lawful money of the United States of America which
shall be legal tender in payment of all debts at the time of payment, said
principal and interest to be paid over a term, at the times, and in the manner
following, to-wit:
INTEREST RATE.
Subject to the provisions below relating to the interest rate
applicable if Borrower does not timely make an interest rate
selection, interest shall accrue on the unpaid principal
amount hereof from time to time outstanding at the variable
rate of two hundred basis points (2%) above the reserve
adjusted LIBOR Rate (as defined below) from the date hereof
until such principal amount is paid in full. The Interest
Periods (as hereinafter defined) between the date hereof and
the date of payment in full of the principal amount hereof
shall, unless no interest rate selection is made by Borrower,
be divided into successive periods of one (1), two (2), three
(3), six (6), or twelve (12) months as selected by Borrower in
accordance with the terms hereinbelow, or such longer period
as may be agreed upon (in writing) by Borrower and Lender,
with each such period being an "Interest Period". The initial
Interest Period shall begin on the date hereof and each
subsequent Interest Period shall begin on the last day of the
immediately preceding Interest Period. The duration of each
Interest Period shall be selected by the Borrower by written
notice to Xxxxxx received by 10:00 a.m. (New York City time)
at least two (2) Business Days prior to the first day of such
Interest Period selected, PROVIDED, HOWEVER, that if the
Borrower fails to select the duration of any Interest Period
by providing written notice to Lender of such selection at
least two (2) business days prior to the expiration of the
then applicable Interest Period, the duration of such Interest
Period shall run until the date of the beginning of the next
Interest Period (as a result of Borrower providing notice of
its election to return to a selected LIBOR Rate) and interest
shall accrue during said
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THIS INSTRUMENT IS BEING EXECUTED AND DELIVERED SOLELY FOR THE PURPOSE OF
RENEWING THAT CERTAIN PROMISSORY NOTE IN THE ORIGINAL PRINCIPAL AMOUNT OF
$1,750,000.00 EXECUTED BY TALLAHASSEE IMPORTS, INC., A FLORIDA CORPORATION,
D/B/A INFINITI OF TALLAHASSEE, DELIVERED TO SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, FORMERLY KNOWN AS SUN BANK, NATIONAL ASSOCIATION, ON
AUGUST 10, 1994.
period at the Prime Rate (as hereinbelow defined) less 50
basis points (0.5%). As used herein "LIBOR Rate" means the
interest rate per annum equal to the rate of interest at which
deposits in United States dollars are offered to the principal
office of the Lender by prime banks in the London interbank
market at 11:00 a.m. (London time) as of the day (the "Rate
Date") two Business Days prior to the first day of the
selected Interest Period for a period equal to such Interest
Period. The "reserve adjusted LIBOR Rate" means the LIBOR Rate
divided by a percentage equal to 100% minus the reserve
percentage, if any, applicable to Lender during such Interest
Period under applicable regulations of the Board of Governors
of the Federal Reserve System with respect to Eurocurrency
Liabilities (as defined in Regulation D, or any successor
regulation thereof, of such Board) having a duration equal to
such Interest Period. The term "Prime Rate" as used herein
shall mean and be defined as the interest rate per annum
announced by SunTrust Banks of Florida, Inc., to be its Prime
Rate (which interest rate is only a benchmark, is purely
discretionary and is not necessarily the best or lowest
interest rate charged borrowing customers of any subsidiary
bank of SunTrust Banks of Florida, Inc.).
Interest shall be calculated on the basis of a three hundred
sixty (360) day year and charged for the actual number of days
elapsed in an interest period. In no event shall the amount of
interest due or payments in the nature of interest payable
hereunder exceed the maximum rate of interest allowed by
applicable law, as amended from time to time, and in the event
any such payment is paid by the Borrower or received by the
Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the Lender, in
writing, that the Borrower elects to have such excess returned
to it for its worth.
PRINCIPAL AND INTEREST PAYMENTS.
Monthly interest payments (each a "Monthly Interest Payment")
shall be due on the first day of each calendar month for the
immediately preceding calendar month; provided, however, that
the installment of interest due on February 1, 1997 (as
hereinbelow required) shall include interest accruing from the
date of this Note. The first Monthly Interest Payment shall be
due and payable on February 1, 1997, with subsequent monthly
interest payments being due on the first day of each
consecutive month thereafter. Payment of principal shall be
due on the date which is ten (10) days after demand. Said date
is herein referred to as the "Maturity Date".
It is expressly understood and agreed that this Note
constitutes a line of credit equal to the face amount hereof, which is available
to the Borrower. It is anticipated that the sums borrowed under this Note may
from time to time be repaid, in part or in full, and thereafter reborrowed. In
such case, this Note shall remain an enforceable obligation to the extent that
additional funds are available hereunder, notwithstanding the earlier repayment
hereof.
The Borrower has the right to prepay all or any part of
the outstanding principal sum, together with the accrued and
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unpaid interest thereon, at any time during the term of this Note, without
penalty or fee, upon two (2) days prior written notice by Borrower to Lender.
Any prepayment of this Note, shall not postpone the due date for any subsequent
payment.
THIS NOTE IS PAYABLE IN FULL ON THE MATURITY DATE. AT MATURITY THE BORROWER MUST
REPAY THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND UNPAID INTEREST THEN DUE.
THE LENDER IS UNDER NO OBLIGATION TO REFINANCE OR RENEW THE NOTE AT THAT TIME.
THE BORROWER WILL THEREFORE BE REQUIRED TO MAKE PAYMENTS OUT OF OTHER ASSETS THE
BORROWER MAY OWN, OR THE BORROWER WILL HAVE TO FIND A LENDER WILLING TO LEND THE
BORROWER THE MONEY. IF THE BORROWER REFINANCES OR RENEWS THIS NOTE AT MATURITY,
THE BORROWER MAY HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY
ASSOCIATED WITH A NEW LOAN EVEN IF THE BORROWER OBTAINS REFINANCING FROM THE
SAME LENDER.
The Lender may, at its option, collect a late charge not to
exceed five percent (5.0%) of any payment not made within ten (10) days after
coming due, to reimburse Lender for expenses of servicing the delinquent
payment.
This Note is secured by all property of the Borrower described
as "Collateral" in that certain Loan and Security Agreement dated August 10,
1994, as amended, (the "Loan Agreement"). The Loan Agreement, and all other
documents evidencing or securing repayment of this Note (all such documents
being herein collectively referred to as the "Loan Documents") also set forth
terms and provisions which may constitute grounds for acceleration of the
indebtedness evidenced by this Note, and additional remedies in the event of
default hereunder.
The Borrower does not intend or expect to pay, nor does the
Lender intend or expect to charge, accept or collect any interest greater than
the highest legal rate of interest which may be charged under the laws of the
State of Florida. If, from any circumstances whatsoever, fulfillment of any
provision of this Note or the Loan Agreement, at the time performance of said
provision shall be due, shall involve transcending the limit of validity
prescribed by the statutes of the State of Florida governing usury or any other
law of the State of Florida, then, IPSO FACTO, the obligation to be fulfilled
shall be reduced to the limit of such validity so that in no event shall
exaction be possible under this Note or the Loan Agreement in excess of the
limit of such validity, but such obligation shall be fulfilled to the limit of
such validity. If, under any circumstances whatsoever, interest in excess of the
limit of such validity will have been paid by the Borrower in connection with
the indebtedness evidenced by this Note, such excess shall be applied to the
unpaid and outstanding principal due under this Note, and not to the payment of
interest. The provisions of this paragraph shall control every other provision
of all other agreements executed by Xxxxxxxx or Lender in connection with this
transaction.
It is agreed that any sums which shall not be paid when due,
whether maturing by lapse of time or by reason of acceleration, whether
principal, interest or money owing for advancements by the Lender pursuant to
the terms of the Loan Agreement securing this Note, shall bear interest at the
rate of eighteen percent (18%) per annum.
If default be made in the payment of any of the sums or
interest mentioned herein or in said Loan Agreement, or other Loan Documents, or
if default be made in the performance of or compliance with any of the covenants
and conditions contained herein or in the Loan Agreement or other Loan
Documents, and such default continues for a period of ten (10) days after
written notice thereof by Xxxxxx, then in any or all of such events, at the
option of the Lender, following the expiration of applicable
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grace periods provided in the Loan Agreement, if any, and without notice, the
entire amount of principal of this Note, together with all interest then
accrued, shall become and be immediately due and payable. Failure on the part of
the Lender to exercise any right granted herein or in the aforesaid Loan
Agreement or other Loan Documents shall not constitute a waiver of such right or
preclude the subsequent exercise thereof.
In the event this Note is placed in the hands of any attorney
for collection, or in case Lender shall become a party either as plaintiff or as
defendant in any suit or legal proceeding in relation to the property described
or the lien created in said Loan Agreement or for the recovery or protection of
the indebtedness represented by this Note or the property given as security
therefor, the Borrower will repay, on demand, all costs and expenses arising
therefrom, including, without limitation, reasonable attorneys' fees, together
with all attorneys' fees, costs and expenses incurred by the Lender in
connection with any bankruptcy proceeding involving any person liable hereunder
or any person who might now have or hereafter acquire a record interest or other
interest in the mortgaged property and other property securing repayment of sums
evidenced by this Note, whether or not there exists any default hereunder,
including by way of example, but without limitation, all attorneys' fees, costs,
and expenses incurred in connection with motions for relief from the automatic
stay and adequate protection, proofs of claim and objections thereto, motions to
dismiss or convert bankruptcy cases, approval of disclosure statements and
objections thereto, confirmation of plans of reorganization and objections
thereto, litigation involving preference and other avoidance powers, motions to
value collateral, objections to the sale or use of collateral, and any and all
other matters pertaining to any bankruptcy case affecting this Note, the Loan
Agreement, other Loan Documents, or the enforcement thereof, together with
interest on such costs and expenses at the highest rate allowed by law until
paid, and together with sales taxes thereon, if any.
The maker, endorsers and guarantors hereof, if any, and all
others who may be or become liable for all or any part of the obligation
represented by this Note, severally waive presentment for payment, protest, and
notice of protest and non-payment, and consent to any number of renewals or
extensions of time of payment hereof. Any such renewals or extensions of time
may be made without notice to any of said parties and without affecting their
liability. In addition, each maker, endorser, or guarantor and all others who
may be or become liable for all or any part of the obligation represented by
this Note agree that the Lender may without notice, and without regard to the
consideration, if any, paid therefor, release or substitute any part of the
property given as security for the repayment of the indebtedness represented
hereby without releasing any other property given as security for such
indebtedness or may release any person liable for the repayment of the
indebtedness represented hereby without releasing any other person obligated on
or for the repayment of the indebtedness evidenced by this Note.
If and whenever this Note shall be assigned and transferred,
or negotiated, the holder hereof shall be deemed the "Lender" for all purposes
under this Note.
This Note may not be changed orally, but only by an agreement
in writing, signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought. It is the intention of the parties hereto
that the terms and provisions of this Note are to be construed in accordance
with and governed by the laws of the State of Florida, except as such laws may
be preempted by any federal law controlling the rate of interest which may be
charged on account of this Note.
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Time is of the essence in interpreting the terms and provisions of this Note.
The rights, remedies and powers of Lender, as provided in this
Note, and the other Loan Documents, and in all other security documents given at
any time to secure the payment hereof, are cumulative and concurrent, and may be
pursued singly, successively or together against Borrower, the property
described in the Loan Agreement, any guarantor hereof and any other security
given at any time to secure the payment hereof, all at the sole discretion of
Lender.
Borrower hereby consents and agrees that, in any actions
predicated upon this Note, venue is properly laid in Orange County, Florida and
that the Circuit Court in and for Orange County, Florida, shall have full
jurisdiction to determine all issues arising out of or in connection with the
execution and enforcement of this Note. Borrower waives to the fullest extent
for itself, its successors and assigns and all persons now or at any time liable
for payment of this Note, to the fullest extent permitted under the laws of the
State of Florida, any right, power, privilege or prerogative to demand a jury
trial with respect to any and all issues arising out of or in connection with
the execution, delivery and/or enforcement of this Note or the transactions
contemplated in the other Loan Documents, (including but not limited to any
claims, cross-claims or third party claims).
The term "Borrower" as used herein in every instance shall
include the Borrower's successors, legal representatives and assigns, including
all subsequent grantees, either voluntarily by act of the Borrower or
involuntarily by operation of law and shall denote the singular and/or plural
and the masculine and/or feminine and natural and/or artificial persons,
whenever and wherever the contexts so requires or properly applies. The term
"Lender" as used herein in every instance shall include the Lender's successors,
legal representatives and assigns, as well as all subsequent assignees,
endorsees and holders of this Note, either voluntarily by act of the parties or
involuntarily by operation of law.
The interest rate, late fee and other charges referenced in
this Note are authorized by Section 687.12, Chapter 655, and other provisions of
the Florida Statutes and applicable federal laws.
Borrowers' Address: TALLAHASSEE IMPORTS, INC., a
Florida corporation
0000 Xxxx Xxxxxxxxx Xxxxxx By:___________________________
Tallahassee, Florida 32302 Xxxx Xxxxxxx
Treasurer
INFINITI OF TALLAHASSEE, INC.,
a Florida corporation
0000 Xxxx Xxxxxxxxx Xxxxxx By:___________________________
Tallahassee, Florida 32302 Xxxx Xxxxxxx
Treasurer
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STATE OF _______________
COUNTY OF ______________
On the ___ day of ______________, 1997 personally appeared
XXXX XXXXXXX, as the Treasurer of Tallahassee Imports, Inc., a Florida
corporation, and before me executed the attached Renewal Floorplan
Line-of-Credit Note dated as of ____________, 1997, in the principal amount of
One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) payable by
Tallahassee Imports, Inc., a Florida corporation, and Infiniti of Tallahassee,
Inc. a Florida corporation, as Borrower, to SunTrust Bank, Central Florida
National Association, in the state and county aforesaid. Said person (check
one) [ ] is personally known to me, [ ] produced a driver's license (issued by a
state of the United States within the last five (5) years) as identification, or
[ ] produced other identification, to wit:_____________________________________.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal, in the state and county aforesaid.
-----------------------------------
Print Name:________________________
Notary Public, State of ___________
Commission No.:____________________
My Commission Expires:_____________
STATE OF _______________
COUNTY OF ______________
On the ___ day of ______________, 1997 personally appeared
XXXX XXXXXXX, as the Treasurer of Infiniti of Tallahassee, Inc., a Florida
corporation, and before me executed the attached Renewal Floorplan
Line-of-Credit Note dated as of ____________, 1997, in the principal amount of
One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) payable by
Tallahassee Imports, Inc., a Florida corporation, and Infiniti of Tallahassee,
Inc. a Florida corporation, as Borrower, to SunTrust Bank, Central Florida
National Association, in the state and county aforesaid. Said person (check
one) [ ] is personally known to me, [ ] produced a driver's license (issued by a
state of the United States within the last five (5) years) as identification, or
[ ] produced other identification, to wit:___________________.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal, in the state and county aforesaid.
-----------------------------------
Print Name:________________________
Notary Public, State of ___________
Commission No.:____________________
My Commission Expires:_____________
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