Exhibit 10.6
PROMISSORY NOTE
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$7,000,000.00 JANUARY 3, 2006
FOR VALUED RECEIVED: to-wit, money loaned, XXXXX CREEK ACQUISITION COMPANY,
LLC, A FLORIDA LIMITED LIABILITY COMPANY, 0000 XXXX XXXX XXXX, XXXXXXX, XX 00000
(hereinafter referred to as the "BORROWER") promises to pay to the order of
BANKERS CREDIT CORPORATION, A FLORIDA CORPORATION, (the "LENDER") at 0000
Xxxxxxxx Xxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, XX 00000, or wherever else
Lender may specify, the sum of SEVEN MILLION AND 00/100 DOLLARS ($7,000,000.00)
with interest until paid.
FUNDING OF THE LOAN:
THE LENDER SHALL FUND THE LOAN EVIDENCED BY THIS PROMISSORY NOTE IN TWO
INSTALLMENTS. THE FIRST INSTALLMENT OF THREE MILLION AND 00/100 DOLLARS
($3,000,000.00) WILL BE FUNDED ON JANUARY 3, 2006. THE SECOND AND FINAL
INSTALLMENT OF FOUR MILLION AND 00/100 DOLLARS ($4,000,000.00) WILL BE FUNDED ON
OR BEFORE MARCH 31, 2006, OR AS FUNDS ARE AVAILABLE TO THE LENDER FOR
ADVANCEMENT TO THE BORROWER, WHICHEVER SHALL LATER OCCUR. IF THE LENDER DOES NOT
HAVE FUNDS AVAILABLE TO ADVANCE AS CONTEMPLATED HEREIN, THE LENDER SHALL BE
UNDER NO FURTHER OBLIGATION TO ADVANCE SUCH FUNDS. THE BORROWER UNDERSTANDS AND
AGREES THAT THE XXXXXX'S ABILITY TO ADVANCE FUNDS IS CONTINGENT UPON THE ACTIONS
OF THIRD PARTIES OVER WHOM THE LENDER HAS NO CONTROL.
CONTRACT RATE OF INTEREST:
The principal balance of this Note outstanding from time to time shall bear
interest at an adjustable rate of interest equal to the Wall Street Journal
published prime rate plus seven and three-fourths percent (7.75%) per annum,
simple interest, provided however that the minimum rate of interest shall never
be less than fifteen percent (15%) per annum, simple interest, nor ever be more
than the highest rate allowable under Florida Law.
TERMS OF PAYMENT:
A. Interest accrued at the rate aforesaid on the outstanding principal
balance shall be due and payable monthly beginning February 3, 2006 and
continuing thereafter on the 3rd day of each month for eleven (11) consecutive
months, until January 3, 2007, the "Maturity Date" (defined hereinafter), at
which time the entire unpaid principal balance of the Note and all accrued and
unpaid interest thereon shall be due and payable.
B. Unless sooner paid, the entire remaining principal balance of this Note,
plus accrued and unpaid interest thereon, shall be due and payable, in full, on
JANUARY 3, 2007 (THE 'MATURITY DATE")
C. THIS NOTE MAY NOT BE PREPAID IN WHOLE OR IN PART PRIOR TO JULY 3, 2006
WITHOUT PAYMENT OF A PENALTY EQUAL TO ONE PERCENT (1%) OF THE AMOUNT PREPAID.
THEREAFTER, THIS LOAN MAY BE PREPAID IN WHOLE OR IN PART WITHOUT PAYMENT OF A
PENALTY. PROVIDED, HOWEVER, WHEN THIS LOAN IS PAID IN FULL ON THE MATURITY DATE
OR SOONER, AS THE CASE MAY BE, THE BORROWER SHALL PAY AN "EXIT FEE" EQUAL TO ONE
PERCENT (1%) OF THE FUNDS ADVANCED BY THE LENDER UNDER THE TERMS OF THIS NOTE.
THE EXIT FEE IS IN ADDITION TO ANY PRE-PAYMENT PENALTY WHICH MAY ALSO BE
APPLICABLE.
Borrower hereby further covenants, warrants and agrees as follows:
LATE PAYMENT; DEFAULT RATE. Xxxxxxxx agrees to pay a late charge equal to
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TEN percent (10.00%) of each payment of principal and/or interest which is not
paid within FIVE (5) days of the date on which it is due. At Lender's option,
the contract rate shall be the highest rate allowed under Florida Law per annum,
commencing with and continuing for so long as the loan or any portion thereof is
in default (as hereinafter defined).
COSTS OF COLLECTION. Upon Borrower's default and where Xxxxxx deems it
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necessary or proper to employ an attorney to enforce collection of any unpaid
balance of this Note or to otherwise protect its interest hereunder; then
Xxxxxxxx agrees to pay Xxxxxx's reasonable attorney's fee (including appellate
costs, if any) and collection costs. Liability for reasonable attorney's fees
and costs shall exist whether or not any suit or proceeding is commenced.
COLLATERAL. Payment of this Note, and all obligations of the undersigned
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Borrower hereunder (the "OBLIGATIONS") to Lender, its successors and assigns, is
secured, inter alia, by that certain Mortgage of even date herewith (the
"SECURITY DOCUMENT"), executed and delivered by Xxxxxxxx, with the Security
Documents recorded or to be recorded in the Public Records of OSCEOLA COUNTY,
Florida, encumbering the real property (the "PROPERTY") described therein. The
Security Documents are, by this reference, incorporated herein. This Note is
further secured by any other property of Borrower in the possession of, or in
which Xxxxxx holds a security interest under any other loans between Borrower
and Lender.
REMEDIES; NON-WAIVER OF DEFAULT. The remedies of Xxxxxx, as provided
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herein, in the Security Documents shall be cumulative and concurrent, and may be
pursued singly, successively or together, at the sole discretion of Lender and
may be exercised as often as occasion therefor shall arise. No act of omission
or commission of Lender, including specifically any failure to exercise any
right, remedy or recourse, shall be effective as a waiver thereof unless it is
set forth in a written document executed by Xxxxxx and then only to the extent
specifically recited therein. A waiver or release with reference to one event
shall not be construed as continuing, as a bar to, or as a waiver or release of,
any subsequent right, remedy or recourse as to any subsequent event.
WAIVERS. Borrower and all sureties, endorsers and guarantors of this Note
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hereby (A) waive demand, presentment for payment, notice of nonpayment, protest,
notice of protest and all other notices, filing of suit and diligence in
collecting this note, in enforcing any of the security rights of the Lender or
in proceeding against the Property; (B) agree to any substitution, exchange,
addition or release of any of the Property or the addition of release of any
party or person primarily or secondarily liable hereon; (C) agree that Lender
shall not be required first to institute any suit, or to exhaust its remedies
against Borrower or any other person or party to become liable hereunder or
against the Property in order to enforce payment of this Note; (D) consent to
any extension, modification, amendment, rearrangement, renewal or postponement
of time of payment of this Note and to any other indulgence with respect hereto
without further notice, consent or consideration to any of the foregoing (except
the express written release by Lender of any such person), and shall be and
remain jointly and severally, directly and primarily, liable for all sums due
under this Note, the Security Documents.
COMPLETION OF BLANKS. In the event any provision(s) of this instrument
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shall be left blank or incomplete, Borrower hereby authorizes and empowers
Lender to supply and complete the necessary information as a ministerial task
consistent with the understanding between the parties.
SETOFF. Upon the occurrence of any of the "EVENTS OF DEFAULT," as
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hereinafter defined, Lender is herewith expressly authorized to exercise its
right of setoff or bank lien as to any monies deposited in demand, checking,
time, savings or other accounts of any nature maintained in and with Lender by
any Borrower without advance notice. Said right of setoff shall also be
exercised and applicable where Xxxxxx is indebted to any signer hereof by reason
of any certificate of deposit, note or otherwise.
EVENTS OF DEFAULT. Borrower shall be in default under this Note upon the
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happening of any of the following events, circumstances or conditions; namely:
a. default in the payment within fifteen (15) days of the date when
due of any of the Obligations of the Borrower hereunder or in connection
herewith or any other Obligations of Borrower or any affiliate (as defined
in 11 U.S.C. Sec.101(a), hereinafter "AFFILIATE") of Borrower or any
endorser, guarantor or surety for Borrower to Lender, howsoever created,
primary or secondary, whether direct or indirect, absolute or contingent,
now or hereafter existing, due or to become due, or of any other covenant,
warranty or undertaking expressed herein, therein, or in any other document
establishing said endorsement, guaranty or surety, or any other document
executed by Borrower in conjunction herewith; or any other document or
agreement made as part of any other loans of Borrower from Lender; or
b. any warranty, representation or statement made or furnished to
Lender by or on behalf of Borrower, or any guarantor, endorser or surety
for Borrower in connection with this Note or to induce Lender to make the
loan to Borrower evidenced by this Note which was false in any material
respect when made or furnished or has become materially false, if such
warranty of Borrower or guarantor, endorser or surety for Borrower was
ongoing in nature; or
c. Borrower or any guarantor, endorser or surety for Borrower shall
allow the acquisition of substantially all of the business or assets of
Borrower or endorser or guarantor or surety for Borrower or a material
portion of such business assets if such a sale is outside Borrower's or
guarantor's, endorser's or surety's ordinary course of business or more
than fifty percent (50%) of the outstanding stock or voting power of
Borrower in a single transaction or a series of transactions, or enter into
any transaction of merger or consolidation without prior written consent of
Lender; or
d. after the notice provided in the Loan Agreement and expiration of
all cure periods provided therein, failure of a corporate Borrower or
guarantor, endorser or surety which is a corporation or limited partnership
to maintain its existence in good standing; or
e. upon the entry of any monetary judgment or the assessment and/or
filing of any tax lien against Borrower not satisfied or superseded within
thirty (30) days, or upon the issuance of any writ of garnishment, judicial
seizure of, or attachment against any property of, debts due or rights of
Borrower or any guarantor, endorser or surety, to specifically include
commencement of any action or proceeding to seize monies of Borrower or any
guarantor, endorser or surety on deposit in any bank account with Xxxxxx
that is not dismissed within thirty (30) days after Xxxxxxxx receives
notice thereof; or
f. the Borrower or any guarantor, endorser or surety for said Borrower
shall be a debtor, either voluntary or involuntary, under (and as the term
debtor is defined in) the Federal Bankruptcy Code and, if involuntary, such
proceedings are not dismissed within sixty (60) days; or
g. after the notice provided in the Loan Agreement and expiration of
all cure periods provided therein, failure of Borrower or any guarantor,
endorser or surety to furnish financial statements or other financial
information reasonably requested by Lender within the time periods allowed
by the Loan Documents; or
h. loss, theft, substantial damage, destruction, sale or encumbrance
to or of any collateral for this Note not adequately covered by insurance;
or
i. after the notice provided in the Loan Agreement and expiration of
all cure periods provided therein, should there occur any default in the
performance of any continuing obligation of the Borrower or any other
obligated party under the Security Documents or the Loan Documents.
j. after the notice provided in the Loan Agreement and expiration of
all cure periods provided therein, should there occur any default in the
performance of any continuing obligation of the Borrower or any other
obligated party under the Security Documents, Loan Documents, or any of
them.
REMEDIES ON DEFAULT (INCLUDING POWERS OF SALE). Upon the occurrence of any
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of the foregoing events, circumstances or conditions of default, all of the
Obligations evidenced herein and secured hereby shall at the option of the
Lender, immediately be due and payable without notice. Further, Xxxxxx shall
then have all the rights and remedies of a secured party under the Uniform
Commercial Code and the common law, as adopted by the state of Xxxxxx's office
as set forth herein.
In addition, and without limitation thereto, Lender shall have the
following specific rights and remedies:
1. to exercise all remedies available to Lender under the Security
Documents and the Loan Documents;
2. to enforce the provisions of this Note in any court of competent
jurisdiction;
3. to exercise its rights of setoff by applying any monies of Borrower on
deposit with Lender toward payment of the Obligations evidenced or referred to
herein or secured hereby, without notice. If any process is issued or ordered to
be served on Lender, seeking to seize Xxxxxxxx's rights and/or interest in any
bank account maintained with Lender, the balance in any said account shall
immediately be deemed to have been and shall be set off against any and all
Obligations of Borrower to Lender, as of the time of issuance of any such writ
or process, whether or not Borrower and/or Lender shall then have been served
therewith;
4. to apply the proceeds realized from disposition of any collateral for
this Note to satisfy the following terms, in the order here listed:
a. the expenses of taking, removing, maintaining, holding for sale,
repairing or otherwise preparing for sale and selling of said collateral
specifically including the Lender's reasonable attorney's fees (including
appellate costs, if any) and both legal and collection expenses;
b. next, to the expense of liquidating any liens, security interests,
attachments or encumbrances upon the property encumbered by the Security
Documents, whether inferior or superior to the security interest therein
created;
c. and finally, to the unpaid principal and all accumulated interest
hereunder and to any other debt owed to Lender by the Borrower.
Any surplus, after the satisfaction of the foregoing items (a) through (c)
shall be paid to Borrower or to any other party lawfully entitled thereto and
known to this Lender. Further, if proceeds realized from disposition of the any
collateral for this Note shall fail to satisfy and of the foregoing items (a)
through (c), Borrower shall forthwith pay deficiency balance to Lender. NOTHING
HEREIN SHALL BE DEEMED TO REQUIRE THE LENDER TO PURSUE ANY PARTICULAR REMEDY
AVAILABLE HEREUNDER PRIOR TO THE PURSUIT OF ANY OTHER REMEDY. NOTHING HEREIN
SHALL BE DEEMED TO REQUIRE THE LENDER TO SEEK RECOURSE AGAINST ANY COLLATERAL
FOR THIS NOTE PRIOR TO THE EXERCISE OF ANY OTHER REMEDY AVAILABLE TO THE LENDER
HEREUNDER.
MISCELLANEOUS.
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No waivers, amendments or modifications of this Note shall be valid unless
in writing.
All terms and expressions contained herein which are defined in Articles 1,
3, 4 or 9 of the Uniform Commercial Code of the State of Florida shall have the
same meaning herein as in said Articles of said Code.
All rights of Lender hereunder shall inure to the benefit of its successors
and assigns; and all obligations of Xxxxxxxx shall bind his heirs, executors,
administrators, successors and/or assigns.
If more than one person has signed this Note, such parties are jointly and
severally obligated hereunder. Further, use of the masculine pronoun herein
shall include the feminine and neuter and
also the plural.
If any provision of this Note shall be prohibited or invalid under
applicable law, such provision shall be ineffective but only to the extent of
such prohibition of invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note.
As used herein, the words "Borrower" and "Lender" shall be deemed to
include Borrower and Xxxxxx as defined herein and their respective heirs,
personal representatives, successors and assigns.
This Note is executed and delivered at the place of execution and, to the
extent permitted under the laws of any other state in which it is enforced,
shall be construed and enforced in accordance with the laws of the State of
Florida.
WAIVER OF JURY TRIAL. BORROWER (BY EXECUTION HEREOF) AND XXXXXX (BY
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ACCEPTANCE OF THIS NOTE) EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
AGREES, THAT:
1. NEITHER XXXXXXXX NOR LENDER, ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL
REPRESENTATIVE OF ANY OF THE SAME SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE ARISING FROM OR BASED
UPON THIS NOTE, ANY OTHER LOAN AGREEMENT OR ANY LOAN DOCUMENT EVIDENCING,
SECURING OR RELATING TO THE OBLIGATIONS OR TO THE DEALINGS OR RELATIONSHIP
BETWEEN OR AMONG THE PARTIES HERETO;
2. NEITHER THE BORROWER NOR XXXXXX WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED;
3. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS;
4. NEITHER THE BORROWER NOR XXXXXX HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES; AND
5. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS
TRANSACTION.
IN WITNESS WHEREOF, Xxxxxxxx, on the day and year first written above, has
caused this Note to be executed under seal by (I) if a corporation, partnership
or other entity, its duly authorized officer(s) or partner(s), as applicable, or
(II) if by individuals, hereunto setting their hands and seals.
XXXXX CREEK ACQUISITION COMPANY, LLC,
A FLORIDA LIMITED LIABILITY COMPANY:
BY: /s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
MANAGER
