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EXHIBIT 10.139.1
PROMISSORY NOTE
$4,460,000.00 October 22, 1996
Orlando, Florida
FOR VALUE RECEIVED, SOUTHERN LAND INVESTORS, LTD., a Florida limited
partnership (the "Borrower") , whose address is c/o Southern Land Company,
Attention: Xxxxxxx X. Xxxxxxxxxx, President, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000, promises to pay to the order of XXXXXX OUTDOOR,
INC., a Florida corporation ("Lender"), at 000 Xxxxxxxxxx Xxxx Xxxx, Xxxx Xxxx
Xxxxx, Xxxxxxx 00000, or at such other place as the holder of this Note may
from time to time designate, the principal sum of FOUR MILLION FOUR HUNDRED
SIXTY THOUSAND AND NO/100 DOLLARS ($4,460,000.00) in lawful money of the
United States of America, and to pay interest on the principal amount remaining
from time to time outstanding from the date hereof until due at the rate of ten
percent (10.0%) per annum. After the maturity or due date of this Note,
whether at the stated maturity, by acceleration, or otherwise, interest shall
accrue on the principal amount remaining unpaid at a rate equivalent to the
highest lawful rate or 25% per annum, whichever is less, until paid (the
"Default Rate").
Notwithstanding the foregoing, however, in no event shall the interest
charged exceed the maximum rate of interest allowed by applicable law, as
amended from time to time. Lender does not intend to charge any amount of
interest or other fees or charges in the nature of interest that exceeds the
maximum rate allowed by applicable law. If any payment of interest or in the
nature of interest hereunder, together with all other payments of interest or
in the nature of interest, would cause the foregoing interest rate limitation
to be exceeded, then such excess payment shall be credited as a payment of
principal unless Borrower notifies Lender in writing that Borrower wishes to
have such excess sum returned, together with interest at the rate specified in
Section 687.04(2), Florida Statutes, or any successor statute.
Interest shall be computed on the basis of a year of 360 days but
charged for the actual number of days elapsed.
Principal and accrued interest hereunder shall be due and payable in a
single payment on April 22, 1998 (the "Maturity
STATE OF FLORIDA DOCUMENTARY STAMPS IN THE AMOUNT
REQUIRED BY LAW HAVE BEEN PAID AND ARE AFFIXED TO
THE MORTGAGE SECURING THIS NOTE, AND CANCELLED PURSUANT TO LAW
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Date"). In the event that the entire principal balance plus any accrued
interest under this Note is not paid in full on or before October 22, 1997,
Xxxxxxxx agrees that a financing fee shall accrue in favor of Lender in the
amount of $50,000.00 per month (for any portion of a monthly period beginning
on October 22, 1997) that any principal or accrued interest remains outstanding
under this Note through the Maturity Date. Any such financing fee that is due
and payable hereunder shall be payable on the Maturity Date.
Each payment and prepayment by Borrower of principal or interest
hereunder shall be made in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debt. If any installment of principal or interest hereunder becomes due
and payable on a day other than a business day, the due date thereof shall be
extended to the next succeeding business day, and, in the case of principal,
interest shall be payable during the extension at the annual rate specified
herein for the payment of interest before maturity. If the date for such
payment is later than the last day of any month in which it is due, the date
for payment shall be the last day of such month.
Unless otherwise specified herein, payments of this Note shall be
applied by Xxxxxx first to interest and lawful charges then accrued, and then
to principal, unless otherwise determined by Lender in its sole discretion.
Borrower shall be entitled to prepay this Note in whole or in part, at
any time, without premium or penalty.
The payment of this Note and all other indebtedness of Borrower to
Lender, however and whenever incurred or evidenced, whether primary, secondary,
direct, indirect, absolute, contingent, sole, joint or several, due or to
become due, or which may be hereafter contracted or acquired, whether arising
in the ordinary course of business or otherwise (hereinafter with this Note,
collectively called "Liabilities"), is secured by a lien on or security
interest in certain real property of Borrower located in Orange County, Florida
and all proceeds thereof (the "Collateral"), as described more fully in real
estate mortgage of even date herewith from Borrower in favor of Xxxxxx (the
"Mortgage"). Failure to list any collateral or security documents shall not
affect Lender's rights in connection with such collateral or security
documents.
Additions to, releases, reductions, or exchanges of, or substitutions
for the Collateral, payments on account of the loan evidenced by this Note or
increases of the same, or other loans made partially or wholly upon the
Collateral, may from time to time
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be made without affecting the provisions of this Note or the Liabilities.
The following constitute events of default ("Events of Default") under
this Note:
(a) Borrower fails to pay principal, interest, or any other amount
due under this Note or any of the other Loan Documents.
(b) Any representation or warranty made by Borrower under this
Note or in the Mortgage, or any report, certificate, financial statement, or
other information provided by Borrower to Lender in connection herewith, is
false or misleading in any material respect when made or deemed made.
(c) Borrower fails to fully and promptly perform when due any
agreement under this Note, the Mortgage, or otherwise a part of the loan
transaction evidenced hereby.
(d) A default or event of default occurs under the Mortgage.
(e) Borrower fails to pay any contractual obligation or principal
or interest on any other indebtedness in excess of $100,000.00 other than that
owed to Lender, if such failure, default, or event of default continues beyond
the expiration of any applicable grace or cure period, or Borrower fails to
fully and promptly perform any other obligation, agreement, term, or condition
related thereto or there is otherwise a default or event of default thereunder
if such failure, default, or event of default continues beyond the expiration
of any applicable grace or cure period.
(f) Borrower fails to fully and promptly perform when due any
agreement contained in any lease, contract, or other agreement to which it is a
party and which has a contract value in excess of $100,000.00, other than the
Loan Documents and other than those containing monetary obligations (as
described in (e) above), or there is otherwise a default or event of default
thereunder (and such failure, default, or event of default continues beyond the
expiration of any applicable grace or cure period).
(g) Borrower liquidates, dissolves, or becomes incompetent; the
business of Borrower is suspended; Xxxxxxxx commences, or consents to or
acquiesces in, a voluntary proceeding in bankruptcy or insolvency; Borrower
applies for, or consents or acquiesces in the appointment of, a receiver for
all or a substantial part of its property; Borrower makes an assignment for the
benefit of creditors; or Borrower is unable to pay its debts as they mature or
admits in writing its inability to pay its debts as they mature.
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(h) An involuntary proceeding in bankruptcy or insolvency is
commenced against Xxxxxxxx; a receiver is involuntarily appointed for all or a
substantial part of the property of Borrower; or an order is entered for the
issuance of a warrant of attachment, execution, distraint, or similar process
against all or a substantial part of the property of Borrower; if any of the
foregoing continues for thirty (30) days without being vacated, discharged,
stayed, bonded, or dismissed.
(i) A judgment is entered against Borrower which is in an amount
in excess of $100,000.00, and which is not discharged or for which 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.
(j) A writ of attachment or garnishment is issued against, or a
lien is imposed by operation of law on, any property of Borrower, if the amount
of the claim or value of the affected property is in excess of $100,000.00, if
the lien is not discharged within thirty (30) days after it has attached.
(k) Any security interest, mortgage, or other lien intended to
secure this Note is or becomes invalid, unenforceable, or unperfected, or
ceases to be or is not a first lien, subject to no other lien except as
expressly permitted herein, or any person granting such interest contests the
validity, enforceability, perfection, or priority thereof, or a security
interest in, mortgage, or lien is granted in such collateral (except in favor
of Lender) or the collateral covered thereby is transferred to another person
without the prior written consent of Xxxxxx.
Xxxxxxxx agrees to pay or reimburse Lender for all of its costs and
expenses incurred in connection with the administration, supervision,
collection, or enforcement of, or the preservation of any rights under, this
Note or the obligation evidenced hereby, including without limitation,
attorneys' fees out of court, in trial, on appeal, in bankruptcy proceedings,
or otherwise. Xxxxxxxx agrees to promptly pay, indemnify, and reimburse Lender
for, and hold Lender harmless against any liability for, any and all
documentary stamp taxes, nonrecurring intangible taxes, or other taxes,
together with any interest, penalties, or other liabilities in connection
therewith, that Lender now or hereafter determines are payable with respect to
this Note, the obligations evidenced by this Note, any advances under this
Note, any guaranties of this Note, or any mortgages or other security
instruments securing this Note.
All notices, requests, and demands to or upon the parties hereto, shall
be deemed to have been given or made when delivered
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by hand, or when deposited in the mail, postage prepaid by registered or
certified mail, return receipt requested, addressed to the address shown above
or such other address as may be hereafter designated in writing by one party to
the other.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida, excluding those laws
relating to the resolution of conflicts between laws of different
jurisdictions.
In any litigation in connection with or to enforce this Note, any
endorsement or guaranty of this Note, or any of the other Loan Documents,
Borrower irrevocably consents to and confers personal jurisdiction on the
courts of the State of Florida or the United States courts located within the
State of Florida, expressly waives any objections as to venue in any of such
courts, and agrees that service of process may be made on Borrower by mailing a
copy of the summons and complaint by registered or certified mail, return
receipt requested, to its address set forth herein (or otherwise expressly
provided in writing). Nothing contained herein shall, however, prevent Lender
from bringing any action or exercising any rights within any other state or
jurisdiction or from obtaining personal jurisdiction by any other means
available by applicable law.
In the event that any one or more of the provisions of this Note is
determined to be invalid, illegal, or unenforceable in any respect as to one or
more of the parties, all remaining provisions nevertheless shall remain
effective and binding on the parties thereto and the validity, legality, and
enforceability thereof shall not be affected or impaired thereby. If any such
provision is held to be illegal, invalid, or unenforceable, there will be
deemed added in lieu thereof a provision as similar in terms to such provision
as is possible, that is legal, valid, and enforceable. To the extent permitted
by applicable law, Borrower hereby waives any law that renders any such
provision invalid, illegal, or unenforceable in any respect.
No delay or omission on the part of Lender in exercising any right or
remedy hereunder shall operate as a waiver of such right or remedy or of any
other right or remedy and no single or partial exercise of any right or remedy
shall preclude any other or further exercise of that or any other right or
remedy. Presentment, demand, notice of nonpayment, notice of protest, protest,
notice of dishonor and all other notices are hereby waived by Xxxxxxxx.
All rights and remedies of Lender under this Note and under any other
Loan Documents are cumulative, and are not exclusive of any rights and remedies
provided by law or in equity, and may be
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pursued singularly, successively, together, and may be exercised as often as
the occasion therefor shall arise. The warranties, representations, covenants,
and agreements made herein and therein shall be cumulative except in the event
of irreconcilable inconsistency, in which case the provisions of the credit
agreement, or, if none, this Note, shall control.
This Note may not be modified or amended nor shall any provision of it
be waived except by a written instrument signed by the party against whom such
action is to be enforced.
This Note shall be binding upon and inure to the benefit of Lender,
its successors and assigns, and shall be binding upon Borrower and its
respective heirs, legal representatives, successors, and assigns; provided,
however, that no rights or obligations of Borrower shall be assigned without
the prior written consent of Lender. In the event Lender transfers or assigns
its obligations hereunder, Lender shall be relieved of all liability therefor.
Time is of the essence in the performance of this Note.
The principal balance of this Note may be reduced in accordance with
the terms and conditions of the Contract for Sale and Purchase of even date
herewith between Borrower and Lender.
Anything in this Note to the contrary notwithstanding, in the event of
a default under this Note, or upon the maturity of this Note, whether by
acceleration or the passage of time, Xxxxxx's recourse against Borrower under
this Note and the Mortgage shall be limited to the remedies set forth in the
Mortgage and the other instruments securing this Note, and the Borrower shall
not be personally liable for the payment of any amounts due under this Note or
the instruments securing this Note. Lender shall not seek a deficiency
judgment against the Borrower for amounts which remain due and owing after
Xxxxxx's exercise of its rights against the Collateral. However, nothing
contained in this paragraph shall prejudice the rights of Lender to recover
from Borrower or its general partner (a) any funds, damages, or costs incurred
by Xxxxxx as a result of fraud or intentional misrepresentation by Xxxxxxxx,
(b) any condemnation or insurance proceeds, or other similar funds or payments
attributable to the Collateral which, under the terms of any instruments
securing this Note, should have been paid to Lender but which have been
misappropriated by the Borrower, or (c) any sums, losses, damages, fines,
assessments, penalties, costs, or other expenses arising from or in any way
related to actual or threatened damage to the environment, the cost of an
agency investigation, personal injury or death, or damage to property due to a
release or alleged release of hazardous or toxic material on
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or under the Collateral or in the surface or groundwater of the Collateral, or
due to any other condition existing on the Collateral resulting from the
presence of hazardous or toxic materials. This limitation of personal
liability against the Borrower is not intended to be, shall not operate as, a
release of or impairment of any part of the indebtedness evidenced by this
Note, or of Lender's lien on any of the Collateral, nor shall it limit or other
prejudice in any way, the rights of Lender to exercise the remedies available
to it under the Mortgage or the rights of Lender to enforce any of its other
rights or remedies under this Note or any other instrument securing this Note.
Borrower and Lender (by its acceptance hereof) hereby knowingly,
irrevocably, voluntarily, and intentionally waive any right to a trial by jury
in respect of any litigation based on this Note, the Mortgage, or any other
document executed in connection with this Note, or arising out of, under, or in
connection therewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of any party. This provision is a
material inducement for Lender to enter into the transaction evidenced hereby.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the date
first written above.
SOUTHERN LAND INVESTORS, LTD.,
a Florida limited partnership
By: Southern Land Company, a Florida
corporation, as its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx,
as its President
(CORPORATE SEAL)
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