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EXHIBIT 4.9
CONSOLIDATED NOTE
$2,475,000.00 March 29, 1996
FOR VALUE RECEIVED, SUNINCO, INC., a Florida corporation ("Maker"),
hereby promises, jointly and severally, to pay to the order of NORTHERN TRUST
BANK OF FLORIDA, N.A. ("Lender") at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx
00000, or at such other place as the holder hereof may from time to time
designate in writing, the principal sum of Two Million Four Hundred Seventy
Five Thousand and 00/100 Dollars ($2,475,000.00), or so much thereof as may be
disbursed by Lender to Maker or for Maker's account from time to time, together
with interest at the rate hereinafter specified on such indebtedness as shall
from time to time remain unpaid, until paid in full, such principal and
interest being payable in lawful money of the United States which shall be
legal tender in payment of all debts at the time of payment. Interest will be
calculated on the basis of a 365/360 method, which computes a daily amount of
interest for a hypothetical year of 360 days, then multiplies such amount by
the actual number of days elapsed in an interest calculating period.
Interest on the unpaid principal sum outstanding from time to time
shall accrue at a fixed rate of eight and one-quarter percent (8.25%) per
annum.
Principal and interest on the loan shall be due and payable in equal
monthly installments of $30,356.52, the first such installment to be due and
payable May 1, 1996, with subsequent installments to be due and payable on the
same day of every month thereafter until April 1, 2006, on which date the then
remaining unpaid principal balance, together with all accrued but unpaid
interest, shall be due and payable.
All payments made hereunder shall be applied first to accrued interest
then due and owing; next to amounts expended by Lender to cure any default
under this Note, the Mortgage (as hereinafter defined), or any other loan
documents executed in connection herewith; next to charges, costs, expenses, or
attorneys' fees then due and payable to Lender under this Note, the Mortgage,
or any other loan documents; and the balance, if any, to principal.
Maker shall have the right and privilege to make partial or total
prepayments at any time, provided, however, that Maker must pay a prepayment
premium ("Premium") based upon the annualized loss of yield ("Loss of Yield")
as herein defined. Loss of Yield is defined to be the amount, if any, by which
1.75% exceeds the Treasury Rate (as herein defined) made most recently
available prior to the prepayment. The term "Treasury Rate" shall mean the
weekly average yield on United States Treasury Securities, adjusted to a
constant maturity for a period equal to the number of full years remaining
until the maturity date of this Note as of the date of the applicable
prepayment. The Premium shall be calculated by determining the product of the
annualized Loss of Yield times the
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amount of the principal being prepaid, divided by 12, and multiplied by the
number of months remaining until the maturity date stated in this Note. In the
event the Treasury Rate is not then being published, then the Premium shall be
based on another index selected by Xxxxxx, in its sole discretion, as an index
similar to the Treasury Rate. In no event shall the Premium be less than $-0-.
Maker must give the Lender at least five (5) days prior written notice of
Maker's intent to prepay, therein identifying the date of and amount of
prepayment.
If any payment is more than fifteen (15) days late, Maker agrees to
pay to Lender a late charge equal to five percent (5%) of the payment.
Notwithstanding the foregoing, however, all payments shall be due and payable
as of the dates set forth above, and the failure to make all payments when due
shall constitute a default under this Note. The terms of this paragraph are not
intended and shall not be deemed to create a grace period for payment.
This Note is secured by a mortgage and security agreement (the
"Mortgage") dated January 9, 1992, as modified on even date herewith, made by
Maker in favor of Lender encumbering real property and personal property
described therein (the "Mortgaged Property") located in Sarasota County,
Florida.
The entire unpaid principal balance hereof together with all accrued
interest due shall, at Lender's sole option, become immediately due and payable
in the event of the sale or transfer of (i) all or any part of the Mortgaged
Property, or any interest therein, or (ii) any beneficial or ownership interest
in Maker, whether held or owned directly or indirectly (if Maker, or any of
them, is not a natural person or persons, but is a corporation, partnership,
trust, estate or other legal entity).
Each and every party to this Note, whether as Maker, endorser, surety,
guarantor, or otherwise ("Obligor"), hereby waives all rights of homestead and
other exemptions granted by the constitution or laws of Florida, and further
waives presentment, demand, protest, notice of dishonor, notice of nonpayment,
notice of protest, and diligence in collection, and assents to the terms hereof
and to any extension or postponement of the time for payment or any other
indulgence. It is further specifically agreed that this Note or any part of the
principal or interest due hereon may be renewed, modified or extended, in whole
or in part, such modification to include but not be limited to changes in
payment schedules and interest rates, from time to time by the holder of this
Note, at the request of the then owners of all or part of the Mortgaged
Property, or at the request of any party bound hereon or who has assumed or may
hereafter assume payment hereof, without the consent of or notice to other
parties bound hereon and without releasing them from any liabilities then
existing.
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Each and every Obligor hereby consents that the real or personal
property securing this Note, or any part of such security, may be released,
exchanged, added to or substituted for by Xxxxxx, without in any way modifying,
altering, releasing, affecting or limiting their respective liabilities or the
lien of the Mortgage, and further agrees that Lender shall not be required
first to institute any suit, or to exhaust any of its remedies against Maker or
any other person or party liable or to become liable hereunder, in order to
enforce payment of this Note, and further agrees that Maker or any other party
liable hereunder may be released by Xxxxxx from any or all liability under this
Note and such release shall in no way affect or modify the liability of the
remaining parties hereto.
Each and every Obligor hereby consents and agrees that he is bound,
jointly and severally, under the terms hereof and is subject to all of the
provisions set forth herein as fully as though each was an undersigned hereof,
and further consents and agrees that any Obligor may be sued by Xxxxxx without
joining any other Obligor, whether primarily or secondarily liable.
Notwithstanding anything contained herein to the contrary or in the
Mortgage, or other loan documents executed in connection herewith, no payee or
holder of this Note shall ever be entitled to receive, collect or apply as
interest on the obligation evidenced hereby any amount in excess of the maximum
rate of interest permitted to be charged by applicable law and, in the event
Lender or any holder hereof ever receives, collects or applies as interest any
such excess, such amount which would be excessive interest shall be applied to
the reduction of the principal sum; and, if the principal sum is paid in full,
any remaining excess shall forthwith be paid to Maker. In determining whether
or not the interest paid or payable under any specific contingency exceeds the
highest lawful rate, Maker and Lender shall, to the maximum extent permitted
under applicable law: (a) characterize any non-principal payment as an expense,
fee or premium rather than as interest; (b) exclude voluntary prepayments and
the effects thereof; and (c) spread the total amount of interest, or charges in
the nature of interest, pursuant to applicable law.
As used herein, "Event of Default" shall mean the occurrence of any of
the following events or conditions: (a) failure or omission to pay when due
this Note (or any installment of principal or interest hereunder); (b) default
in the payment (other than payment of principal and interest) or performance of
any obligation, covenant, agreement or liability contained or referred to in
the Mortgage, this Note, or any other loan document executed in connection
herewith, or upon the existence or occurrence of any circumstance or event
deemed a default under this Note or any other loan document executed in
connection herewith; (c) any warranty, representation or statement made or
furnished by any Obligor to Lender for the purpose of inducing Lender to make
the loan
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evidenced by this Note, proves to have been false in any material respect when
made or furnished; (d) a default under any other mortgage on the Mortgaged
Property (whether such other mortgage be held by Xxxxxx or by a third party);
(e) the institution of foreclosure proceedings of another mortgage or lien of
any kind on the Mortgaged Property (whether such other mortgage or lien be held
by Lender or by a third party); (f) the default by Maker in the payment or
performance of any obligation, covenant, agreement, or liability contained in
any other mortgage, note, obligation or agreement held by Xxxxxx, specifically
including but not limited to (i) that certain revolving line of credit in the
amount of $1,700,000.00; and (ii) equipment loan in the amount of $775,000.00
("Other Existing Indebtedness"); (g) the death, dissolution, termination of
existence, insolvency, or business failure of any Obligor; (h) the appointment
of a receiver of any part of the Mortgaged Property; (i) the assignment for the
benefit of creditors or the commencement of any proceedings in bankruptcy or
insolvency by or against any Obligor; (j) the determination by Lender that a
material adverse change has occurred in the financial condition of any Obligor
from the conditions set forth in the most recent financial statement of such
Obligor heretofore furnished to Lender or from the condition of such Obligor as
heretofore most recently disclosed to Lender in any manner; (k) falsity in any
material respect of, or any material omission in, any representation or
statement made to Lender by or on behalf of any Obligor in connection with the
loan evidenced by this Note; (l) loss, theft, substantial damage, destruction,
sale or encumbrance of any of the Mortgaged Property or any levy, seizure or
attachment thereof; or (m) the pledge, assignment, transfer or granting of a
security interest in any of the Mortgaged Property. Upon the occurrence of any
such default or at any time thereafter, subject to the grace period, if any,
provided in this Note, Lender may, at its option, declare the whole amount of
principal and interest provided for in and by this Note, and any and all other
secured indebtedness, immediately due and payable without demand or notice of
any kind to any person, and the same thereupon shall become immediately due,
payable and collectible (by foreclosure or otherwise) at once and without
notice to Maker. Any default hereunder shall constitute a default under any
other mortgage, note, obligation or agreement of Maker held by Xxxxxx,
specifically including but not limited to the Other Existing Indebtedness. The
agreements contained in this paragraph to create cross-defaults under all
mortgages, notes, obligations and agreements between Maker and Lender, whether
currently existing or hereafter created, in the event of default under one or
more of such mortgages, notes, obligations or agreements are a material and
specific inducement and consideration for the making by Lender of the loan
evidenced by this Note.
It is expressly agreed that upon the occurrence of an Event of
Default, or if Lender shall deem itself insecure (because the prospect of
timely payments is impaired, because the value of Xxxxxx's security is
impaired, because the prospect of performance
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of any covenant or agreement under this Note, the Mortgage, or any other loan
document is impaired, because of any change of circumstance which adversely
affects any matters originally considered by Xxxxxx in making the loan, or
otherwise), then or at any time thereafter at the option of Lender, the whole
of the principal sum remaining unpaid hereunder, together with all accrued and
unpaid interest thereon, shall become due and payable immediately without
notice, anything contained herein to the contrary in any way notwithstanding,
and in any such event Lender shall have the right to set-off against this Note
all money owed by Lender in any capacity to any Obligor, whether or not due,
and Lender shall be deemed to have exercised such right of set-off and to have
made a charge against any such money immediately upon the occurrence of an
Event of Default although made or entered on the books subsequent thereto. From
and after an Event of Default, the interest rate on the entire outstanding
principal balance hereunder shall accrue at the highest rate permitted to be
charged by applicable law. In the event the default rate of interest set forth
in the foregoing sentence shall be applicable and Lender has not accelerated
this Note, the amount of each payment otherwise due hereunder shall be
increased to an amount equal to the regular amount of the principal installment
due hereunder, plus accrued interest at the default rate.
Each Obligor shall be obligated to pay as part of the indebtedness
evidenced by this Note all costs of collection, whether or not a suit is
brought, including any reasonable attorneys' fees that may be incurred in the
collection or enforcement hereof. The term "attorneys' fees" shall include but
not be limited to any such fees incurred in any appellate or related ancillary
or supplementary proceedings, whether before or after final judgment related to
the enforcement or defense of this Note.
If at any time any federal, state, county or municipal government or
agency thereof shall impose any documentary stamp tax, intangible tax, or any
other type of tax upon this Note or the Mortgage, or upon the indebtedness
evidenced hereby (other than any federal, state or local income tax imposed
upon Lender), then Maker shall pay same within fifteen (15) days after demand
by Xxxxxx, together with any interest and penalties thereon.
Time is of the essence of this Note. The remedies of Lender as
provided herein or in the Mortgage, or any other loan document executed in
connection herewith, shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Lender, and may
be exercised as often as occasion therefor shall arise. No act or omission of
Lender, including specifically any failure to exercise any right, remedy or
recourse, shall be deemed to be a waiver or release of such right, remedy or
recourse, and any waiver or release may be effected only through a written
document executed by Xxxxxx and
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then only to the extent specifically recited therein. A waiver or release with
respect to any 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.
The term "Lender" where used herein shall include Xxxxxx's successors
and assigns. The term "Maker" shall include each person signing this Note,
jointly and severally, and their respective heirs, successors and assigns. The
term "Obligor" shall include Maker and every person who is an endorser,
guarantor, or surety of this Note, or who is otherwise a party hereto, and
their respective heirs, successors and assigns. The terms "person" and "party"
shall include individuals, firms, associations, joint venturers, partnerships,
estates, trusts, business trusts, syndicates, fiduciaries, corporations, and
all other groups or combinations. Whenever used herein, the singular number
shall include the plural, the plural the singular, and the use of any gender
shall include all genders. This Note shall be construed under Florida law.
This is a consolidated note which consolidates two promissory notes
executed by Maker in favor of Xxxxxx: (i) note dated January 9, 1992 with a
current principal balance of $1,692,194.38, and (ii) note dated on even date
herewith in the original principal amount of $782,805.62. The principal balance
hereof is equal to the total of the principal balances of the two promissory
notes which it consolidates. State of Florida documentary stamps in the amount
required by law were affixed to the mortgage securing the notes which this note
consolidates, and were cancelled pursuant to law. No further State documentary
stamps are required.
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed and
delivered as of the date first above written.
Maker's Address:
0000 Xxxxxxxxxx Xxxxxxx XXXXXXX, INC., a Florida
corporation
Sarasota, FL 34243
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
As its President
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