PROMISSORY NOTE
$5,420,000.00 Pensacola, Florida
May 21, 1998
FOR VALUE RECEIVED, HOME STAY LODGE 1, LTD., a Florida limited partnership,
(hereinafter referred to as "Borrower") promises to pay to the order of BANK OF
PENSACOLA, its successors and assigns (referred to herein, together with any
other holder hereof, as the "Lender"), at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx 00000. or at such other place as the Lender may from time to time
designate, the principal sum of FIVE MILLION FOUR HUNDRED TWENTY AND 00/100
DOLLARS ($5,420,000.00) in lawful money of the United States of America. or so
much of that sum as may be advanced under this Note or pursuant to the Loan
Agreement (hereinafter defined), together with interest thereon from the date of
this Note until this Note is paid in full, said principal and interest being
calculated and payable in the amounts, at the times and upon the terms and
conditions provided in this Note.
1. DEFINITIONS. As used in this Note, the following terms shall have the
indicated meanings:
A. "Loan" shall mean that certain loan made by Lender to Borrower pursuant
to the Loan Agreement, as evidenced by this Note.
B. "Loan Agreement" shall mean that certain Construction and Term Loan
Agreement of even date herewith between Borrower and Lender concerning a loan
from Lender to Borrower in the original principal amount of $5,420,000.00.
C. "Loan Commitment" shall mean that certain loan commitment letter
concerning the Loan dated May 7,1998.
D. "Loan Documents" shall mean, collectively, this Note, the Mortgage, the
Loan Agreement, the Loan Commitment and all other assignments, guaranties and
instruments evidencing, securing or relating to the Loan.
E. "Maturity Date" shall mean February 14, 2004.
F. "Mortgage" shall mean that certain Mortgage and Security Agreement of
even date herewith from Borrower to Lender securing this Note.
G. "Premises" shall mean the real property in Escambia, Florida, described
in and subject to the Mortgage.
2. INTEREST RATE. For the first 270 days of the term of this Note, interest
shall accrue on the outstanding principal balance at the rate of Bank of
Pensacola Prime (as that rate may be adjusted from day to day) plus one-quarter
percent (.25%). For all days during the term of this Note after the first 270
days, interest shall accrue and be payable on the outstanding principal balance
of this Note at the rate of eight and one-half percent (8.5%) per annum.
Interest during the term of this Note shall be computed on the basis of a
360-day year for the actual number of days the principal is outstanding during
each month.
3. PAYMENT. For the first 270 days of this Note, payments of accrued
interest only on the outstanding principal balance of this Note shall be payable
every thirty (30) days, commencing on June 19, 1998, and continuing every thirty
(30) days thereafter. Payments of $47,472.21 (including principal and interest)
shall be payable monthly commencing on March 14, 1999 and continuing on the
fourteenth day of each succeeding month until the maturity date. On the Maturity
Date, all principal, unpaid accrued interest and other charges hereunder shall
be due and payable in full. Each such payment will be applied first to accrued
but unpaid interest and then to unpaid principal.
4. AFTER-DEFAULT INTEREST. Notwithstanding the foregoing, from and after any
Event of Default under this Note, interest on the outstanding principal balance
shall accrue and be payable at the rate of thirteen and one-half percent
(13.5%).
5. INTEREST LIMITATION. Nothing contained in this Note, the Mortgage, the
Loan Agreement or in any of the Loan Documents shall be construed or shall
operate, either presently or prospectively, to require the Borrower to pay
interest in excess of the maximum interest rate allowable under any statute or
law applicable to this transaction or to make any payments or do any act
contrary to law, nor shall the Borrower be obligated or required to pay interest
on the outstanding principal balance at a rate which could subject Lender to
either civil or criminal liability as a result of being in excess of the maximum
rate which the Borrower is permitted by law to contract, agree to pay or pay.
Any interest paid in excess of the maximum rate allowed by law shall, at
Lender's option, be (i) refunded to the Borrower, (ii) applied to reduction of
the principal balance under this Note, or (iii) credited to amounts then due and
owing by the Borrower under this Note, the Mortgage, the Loan Agreement or any
of the Loan Documents; provided. however. that if the excessive amount of
interest paid by Xxxxxxxx exceeds the sums outstanding hereunder, the portion
exceeding the sums outstanding hereunder shall be refunded in cash to the
Borrower. Any such crediting or refund shall not cure or waive any Event of
Default by Borrower hereunder or under any of the Loan Documents. Further, if
the terms of this Note would otherwise require or obligate Borrower to pay
interest on the principal balance hereunder at a rate in excess of the maximum
rate allowed by law, then the rate of interest under this Note shall IPSO FACTO
be deemed to be reduced to such maximum lawful rate, and interest payable
hereunder shall be computed at such maximum lawful rate and all payments
theretofore or thereafter accruing hereunder shall be likewise computed on the
basis of such maximum lawful rate. Xxxxxxxx agrees, however, that in determining
whether or not any interest payable hereunder exceeds the maximum rate allowed
by law, any non-principal payment (except payments specifically stated herein to
be "interest"), including without limitation late charges, shall be deemed, to
the extent permitted by law, to be an expense, fee, premium or penalty rather
than interest.
6. PREPAYMENT.
A. VOLUNTARY PREPAYMENT. Principal outstanding under this Note may be
prepaid in full or in part at any time and from time to time without penalty or
premium. No such partial prepayment of principal will have the effect of
postponing, satisfying, reducing or otherwise affecting any scheduled
installment of interest or principal and interest before the principal of and
interest on this Note, together with all other charges due under the Loan
Documents, are paid in full.
7. LATE CHARGE. If any installment of interest or of any escrow or other
payment required to be made under this Note or any of the Loan Documents (except
for the principal payment due on the Maturity Date) is not received by Lender
within ten (10) days after the date on which the installment or payment became
due, then Borrower shall pay to Lender a late charge equal to five percent (5%)
of such installment or payment amount. Nothing contained herein shall be
construed as creating any grace period or additional grace period for the making
of any such installment or payment.
8. DEFAULT. The occurrence of any of the following shall constitute an Event
of Default under this Note:
A. If Borrower fails to make any monetary payment required by this Note, as
and when due, and such failure continues for a period of five (5) days after
receipt by Borrower of written notice by Xxxxxx to Borrower: or
B. If there occurs any other Event of Default under or specified in any of
the Loan Documents.
9. ACCELERATION. Upon the occurrence of any Event of Default as hereinabove
defined, the entire principal balance of this Note, together with all accrued
interest and other sums due hereunder or under the Loan Documents, shall become
immediately due and payable without notice, demand or legal process, at the
option of Lender.
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10. LOAN DOCUMENTS. This Note is referred to in and arises out of the Loan
Agreement, and this Note is secured by, among other instruments, the Loan
Documents. Said Loan Documents contain additional provisions for the
acceleration of the maturity of this Note.
11. ADDITIONAL WAIVERS AND AGREEMENT. With respect to any and all
obligations under this Note or under any of the Loan Documents, Borrower and all
co-signers, sureties, endorsers and guarantors of this Note, hereby:
X. Xxxxx demand, presentment, protest, notice of protest, notice of
dishonor, notice of acceleration of maturity, suit against any party and all
other notices and requirements necessary to charge or hold the Borrower or any
such co-signer, surety, endorser or guarantor on any such obligation;
B. Agree to continue and remain bound for the payment of principal, interest
and all other sums payable hereunder or under any of the Loan Documents,
notwithstanding any change or changes by way of addition, release, surrender,
exchange or substitution of any security for this Note or of any party or
parties liable hereunder or by way of any extension or extensions of time for
the payment of any sums due hereunder or under any of the Loan Documents or any
other changes or modifications to any of the Loan Documents agreed to by
Xxxxxxxx, and waive all and every kind of notice of such change or changes and
all defenses on the ground of such change or changes and agree that the same may
be made without notice to or consent of any of them;
C. Waive the right to interpose any setoff or counterclaim of any nature or
description (except a setoff or counterclaim directly related to or arising from
the Loan or the Loan Documents) in any litigation in which the Lender and the
Borrower and/or such co-signers, sureties, endorsers and guarantors, or any of
them, shall be parties;
X. Xxxxx that any obligations of Borrower or such co-signers, sureties,
endorsers or guarantors hereunder may, from time to time, in whole or in part,
be renewed, extended, modified, accelerated, compromised, discharged or released
by Lender, and any collateral, lien and right of setoff securing any such
obligations may, from time to time, in whole or in part, be exchanged, sold or
released, all without notice to or further reservations of rights against any of
said parties and all without in any way affecting or releasing the liability of
any of said parties;
E. Agree to pay all filing fees, taxes and all costs of collecting or
securing or attempting to collect or secure any obligations under the Note or
any of the Loan Documents (except for current interest billing), including
without limitation reasonable attorney's fees, whether or not any lawsuit is
filed; and
X. XXXXXXXX AND ALL CO-SIGNERS, SURETIES, ENDORSERS AND GUARANTORS OF THIS
NOTE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREE THAT:
(1) THEY AND EACH OF THEM HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, CROSS-CLAIM OR OTHER ACTION OR PROCEEDING
ARISING FROM OR BASED UPON THIS NOTE OR ANY OF THE LOAN DOCUMENTS, AND NEITHER
THE BORROWER, NOR BORROWERS HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS,
NOR ANY CO-SIGNER, SURETY, GUARANTOR, ENDORSER OR OTHER OBLIGOR OBLIGATED FOR
THE INDEBTEDNESS EVIDENCED BY THIS NOTE, OR SUCH PERSON'S OR ENTITY'S HEIRS,
LEGAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS, SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, CROSS-CLAIM OR OTHER ACTION OR PROCEEDING
ARISING FROM OR BASED UPON THIS NOTE OR ANY OF THE LOAN DOCUMENTS.
(2) NEITHER THE BORROWER, NOR BORROWERS HEIRS. LEGAL REPRESENTATIVES,
SUCCESSORS OR ASSIGNS, NOR ANY CO-SIGNER, SURETY, GUARANTOR, ENDORSER OR OTHER
OBLIGOR OBLIGATED FOR THE INDEBTEDNESS EVIDENCED BY THIS NOTE, NOR SUCH PERSON'S
OR ENTITY'S HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS, SHALL SEEK TO
CONSOLIDATE ANY CLAIM AS TO WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY CLAIM IN
WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED.
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(3) THE PROVISIONS OF THIS SUBSECTION (F) HAVE BEEN FULLY NEGOTIATED BY
XXXXXX, BORROWER AND ANY AND ALL CO-SIGNERS, SURETIES, GUARANTORS, ENDORSERS AND
OTHER OBLIGORS OBLIGATED FOR THE INDEBTEDNESS EVIDENCED BY THIS NOTE, AND THESE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
(4) NEITHER XXXXXX NOR ANY OFFICER, EMPLOYEE, ATTORNEY, AGENT OR OTHER
REPRESENTATIVE OF XXXXXX HAS IN ANY WAY AGREED WITH OR REPRESENTED TO BORROWER,
OR ANY CO-SIGNER, SURETY, GUARANTOR, ENDORSER OR ANY OTHER PARTY OBLIGATED FOR
THE INDEBTEDNESS EVIDENCED BY THIS NOTE THAT THE PROVISIONS OF THIS SUBSECTION
(F) WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
(5) THIS SUBSECTION (F) IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER
INTO THE LOAN AND OTHER TRANSACTIONS EVIDENCED BY THIS NOTE AND THE LOAN
DOCUMENTS.
12. MISCELLANEOUS.
A. All amounts payable under this Note are payable in lawful money of the
United States at the main office of the Lender in Pensacola, Florida. A check
shall constitute payment when actually received by Xxxxxx, provided it is
subsequently honored and collected in the ordinary course of business without
having been returned to Lender for insufficient funds or other reasons. Any
payment received by Lender after 2:00 p.m., Pensacola, Florida, time on any day
shall be deemed to have been received by Lender on the next succeeding day which
is not a Saturday, Sunday or legal holiday under the laws of the State of
Florida or the United States of America.
B. Lender may, but shall not be required to, apply, on or after maturity,
to the payment of this debt, any funds or credit held by Lender on deposit, in
trust or otherwise, for the account of the Borrower or of any co-signer, surety,
endorser or guarantor hereof.
C. As used herein, the singular shall be deemed to include the plural and
vice versa, and each gender shall be deemed to include all other genders, unless
a contrary intention clearly appears. If the Borrower consists of more than one
person or entity, the obligations and liabilities of each such person or entity
hereunder shall be joint and several.
D. Lender shall not by any act, delay, omission or otherwise be deemed to
have waived any of its rights or remedies, and no waiver of any kind nor any
modification of this Note shall be valid unless in writing and signed by Xxxxxx.
All rights and remedies of Lender under the terms of this Note, the Loan
Documents and any statutes or rules of law shall be cumulative and may be
exercised successively or concurrently. Xxxxxxxx agrees that Xxxxxx shall be
entitled to all the rights of a holder in due course of a negotiable instrument.
E. This Note has been executed and delivered in the State of Florida, is to
be performed in the State of Florida, and shall be governed by and construed in
accordance with the laws of the State of Florida.
F. If any provision of this Note shall be unenforceable or invalid under
applicable law, then the remaining provisions of this Note shall not be affected
thereby but shall remain in full force and effect.
G. The Borrower shall be liable for all indebtedness represented by this
Note and has subscribed its name hereto without condition that anyone else
should sign or become bound hereon and without any other condition whatever
being made. The provisions of this Note are binding on, and shall inure to the
benefit of, the Borrower and the. heirs, executors, administrators, assigns and
successors of the Borrower.
H. All notices and other communications required hereunder shall be in
writing and shall be delivered personally, or by registered or certified mail,
return receipt requested, postage prepaid, or by Federal Express, Express Mail
or Air Courier, fees prepaid. Such notices shall be deemed to have been received
(i) upon delivery, if personally delivered; (ii) upon the earlier of actual
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receipt or the fourth day after mailing, if mailed by registered or certified
mail, return receipt requested, postage prepaid; and (iii) on the next business
day if sent by Federal Express, Express Mail or Air Courier, fees prepaid. The
address for delivery of such notices shall be as follows:
(a) To Lender at: BANK OF PENSACOLA
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx.
with copy to: Xxxxxxx X. Xxxxxxx, Xx., of
Shell, Xxxxxxx, Xxxxx & Xxxxx
Post Office Box 1831
Pensacola, Florida 32598-1831
(b) To Borrower at: HOME STAY LODGE I, LTD.
0000 Xxxxx XxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxxxx
with copy to: Xxxxxx X. "Skip" Xxxxxxx, III
0000 Xxxxx XxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
In Witness Whereof, Xxxxxxxx has caused this instrument to be executed in
its name by its duly authorized officer with an effective date as of the date
and year first above written.
HOME STAY LODGE I, LTD., a Florida
limited partnership
By: Home Stay Lodge, Inc.
By: /s/ Xxxxxx X. XxXxxxxx
Its: President
Its Sole General Partner
STATE OF FLORIDA
COUNTY OF ESCAMBIA
The foregoing instrument was acknowledged before me this 21st day of May
1998, by Xxxxxx X. XxXxxxxx the President of Home Stay Lodge, Inc., a Florida
corporation, the sole general partner of HOME STAY LODGE I, LTD., a Florida
limited partnership, on behalf of said partnership ( ) who is personally known
to me or (x) who produced Texas driver license as identification.
/s/ Xxxxxxx X. Xxxxxxx, Xx.
NOTARY PUBLIC - STATE OF FLORIDA
Typed Name: Xxxxxxx X. Xxxxxxx, Xx.
My Commission Expires: 02-28-01
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