THE PUBLISHING COMPANY OF NORTH AMERICA, INC.
FORM 10-KSB - DECEMBER 31, 1996
EXHIBITS
3. Exhibit 10.1 First Union Real Estate Balloon Promissory Note
This item begins on the following page.
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FIRST UNION
REAL ESTATE BALLOON PROMISSORY NOTE
$800,000.00 No._____________ ORLANDO, FLORIDA
December 30, 1996
LENDER: FIRST UNION NATIONAL BANK OF FLORIDA, (hereinafter termed
"LENDER"), 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
BORROWER: THE PUBLISHING COMPANY OF NORTH AMERICA, INC., a Florida
corporation, whose address is 000 Xxxxx Xxxxxxxxxx Xxxx Xxxx.,
Xxxx Xxxxx, Xxxxxxx 00000
XXXXXXXX REPRESENTS HEREWITH THAT THE LOAN EVIDENCED HEREBY IS BEING OBTAINED
FOR THE FOLLOWING PRIMARY PURPOSE:
[X]BUSINESS; [ ]PERSONAL; [ ]FAMILY OR HOUSEHOLD; [ ]AGRICULTURAL
FOR VALUE RECEIVED: to wit, money loaned, the above named; the
undersigned BORROWER (hereinafter "BORROWER"), promises to pay to the order of
LENDER at its office in the above city, or wherever else LENDER may specify, the
sum of EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($800,000.00), with interest
until paid.
INTEREST RATE:
Interest shall accrue at the rate of two hundred fifty (250) basis points above
the "LIBOR Base Rate", as hereinafter defined. The interest rate shall initially
be calculated with reference to the LIBOR Base Rate which is in effect on the
date of this Note and shall be adjusted on the fifth (5th) day of each month
beginning the fifth (5th) of February, 1997 and continuing each month thereafter
(the "Change Date"). The interest rate shall be fixed until the next Change Date
as such LIBOR Base Rate changes. 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 payment period. The term "LIBOR Base Rate" shall mean
that rate per annum for United States dollar deposits with a one month maturity
for an amount equal or comparable to the outstanding principal balance of this
Note as reported on Telerate page 3750 (or if not so reported, then as
determined by Lender from another recognized source of interbank quotations of
Lender's choice), as of 11:00 a.m. London time, two (2)London business days
prior to each Change Date for settlement in immediately available funds by major
top credit quality banks in the London Interbank Market adjusted for reserves by
dividing that rate by 1.00 minus the LIBOR Reserve. The LIBOR Base Rate shall be
rounded to the next higher 1/16th of 1% unless the Borrower has hedged LIBOR
with an interest rate swap with the Lender in which event LIBOR shall be rounded
five (5) decimal places as set forth in the 1991 ISDA Definitions published by
the International Swap and Derivatives Association, Inc. "LIBOR Reserve" is the
maximum percentage reserve requirement (rounded to the next highest
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1/16th of 1%) in effect for any day the principal balance of this Note is
outstanding under the Federal Reserve Board's Regulation D for "Euro-Currency
Liabilities" as defined therein. In no event, however, shall any adjustment or
LIBOR Reserve exceed the Borrower's pro rata share of Lender's total reserve
requirement for all of its Euro-Currency Liabilities. The LIBOR Base Rate is
one of several interest rate bases used by Lender, and is not necessarily the
lowest or most favorable rate of interest offered by Lender.
PAYMENTS OF PRINCIPAL AND INTEREST:
Beginning on the fifth (5th) day of February, 1997, and continuing on the fifth
(5th) day of each month thereafter until this Note shall be paid in full,
monthly payments of (i) all accrued but unpaid interest at the interest rate
provided above, plus (ii) principal in the amount of $4,444.44, shall be due and
payable. On December 5, 2011, this Note shall be fully paid in a final balloon
payment and the then remaining principal balance shall be paid in full, together
with all interest accrued thereon.
The Borrower agrees to pay a late charge equal to 5% of each payment of
principal and/or interest which is not paid within 10 days of the date on which
it is due. At LENDER'S option, the interest rate shall become the highest rate
allowed by the law of the state of LENDER'S office as set forth herein
commencing with and continuing for so long as the loan or any portion thereof is
in Default (as hereinafter defined). Further, upon XXXXXXXX'S Default and where
XXXXXX deems it necessary or proper to employ an attorney to enforce collection
of any unpaid balance or to otherwise protect its interests hereunder; then
XXXXXXXX agrees to pay XXXXXX'S reasonable attorneys' fees (including appellate
costs, if any) and collection costs. Liability for reasonable attorneys' fees
and costs shall exist whether or not any suit or proceeding is commenced.
Interest is computed on the basis of a 360 day year for the actual number
of days in the interest period (Actual/360 computation) unless indicated
below.
BORROWER HEREBY FURTHER WARRANTS, COVENANTS, AND AGREES, AS FOLLOWS:
Anything contained herein to the contrary notwithstanding, if for any
reason the effective rate of interest on this Note should exceed the maximum
lawful rate, the effective rate shall be deemed reduced to and shall be such
maximum lawful rate, and any sums of interest which have been collected in
excess of such maximum lawful rate shall be applied as a credit against the
unpaid balance due hereunder.
LENDER'S Actual/360 or 365/360 computation determines the annual
effective interest yield by taking the stated (nominal) interest rate for a
year's period and then dividing said rate by 360 to determine the daily periodic
rate to be applied for each day in the interest period. Application of such
computation produces an annualized effective interest rate exceeding that of the
nominal rate.
At LENDER'S option, any repayments of this Note, other than by U.S.
currency, will not be credited to the outstanding loan balance until XXXXXX
receives collected funds.
In the event any provision(s) of this instrument shall be left blank or
incomplete, BORROWER
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xxxxxx authorizes and empowers LENDER to supply and complete the necessary
information as a ministerial task consistent with the understanding between the
parties.
BORROWER warrants that XXXXXXXX does not have either a "record" or
reputation for violating Laws of the United States or of any State relating to
liquor (as referred to in 18 U.S.C.A. 3617, et seq.) or narcotics and/or any
commercial crimes.
The collateral pledged by BORROWER to secure this Note (hereinafter
referred to as the "COLLATERAL") SHALL, AT ALL TIMES, BE AT BORROWER'S risk. The
loss, injury to or destruction of COLLATERAL shall not release BORROWER from
payment or other performance hereof. XXXXXXXX agrees to obtain and keep in force
Physical Damage and/or Property Damage Insurance on said COLLATERAL and any
other insurance required by LENDER. Such insurance is to be in form and amounts
satisfactory to LENDER, with the same payable to LENDER. All such policies shall
provide for ten days written minimum cancellation notice to LENDER. BORROWER
shall furnish to LENDER the original policies or certificate or other evidence
satisfactory to LENDER of compliance with the foregoing provisions. LENDER is
authorized, but not obligated, to purchase any or all of said insurance or
"single interest insurance" protecting only its security interest, all at
BORROWER'S expense. In such event, XXXXXXXX agrees to reimburse LENDER for the
cost of such insurance to the extent that the same is not included in the
principal amounts of this Note.
XXXXXXXX hereby assigns to LENDER the proceeds of all such insurance to
the extent of the unpaid balance hereunder, and directs any insurer to make
payments directly to LENDER. BORROWER further hereby grants to LENDER its Power
of Attorney, which shall be irrevocable for so long as any amount is unpaid
hereunder. Said Power of Attorney gives XXXXXX the sole right to file Proof of
Loss and/or any other forms required to collect from any insurer any amount due
from any loss, damage or destruction of the COLLATERAL; to agree to and bind
BORROWER as to the amount of said recovery; to designate Xxxxx(s) of such
recovery; to grant releases to payor-insurers for their liability; to grant
subrogation rights to any such payor-insurer, to indorse any settlement check or
draft. XXXXXXXX further agrees not to exercise any of the foregoing powers
granted to XXXXXX, without the XXXXXX'S written consent. In the event of any
default hereunder, LENDER is authorized in its sole discretion to cancel any
insurance and credit any premium refund against the unpaid balance due on
BORROWER'S OBLIGATIONS.
If, with respect to any security pledged hereunder, a stock dividend is
declared or any stock split-up made or right to subscribe is issued, all
certificates for the shares representing such stock dividend or stock split-up
right to subscribe will be immediately delivered, duly indorsed to the LENDER as
additional COLLATERAL security.
If, at any time, the COLLATERAL shall be deemed unsatisfactory to and
by LENDER, or in the event LENDER shall otherwise deem itself, its security
interests, its COLLATERAL or said debt unsafe or insecure, then and on demand of
LENDER, BORROWER shall immediately furnish such further COLLATERAL or make such
payment on said account as will be satisfactory to LENDER to be held by said
LENDER as if originally pledged hereunder.
At its option, LENDER may discharge taxes, liens, security interests or
other encumbrances at any time levied or placed on said COLLATERAL, may pay for
insurance and for the maintenance and
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preservation of same. XXXXXXXX agrees to reimburse LENDER, on demand, for any
such payment made, or any such expense incurred by LENDER pursuant to the
foregoing authorization. Until Default, as hereinafter defined, BORROWER shall
have the right to retain possession of the COLLATERAL, unless otherwise agreed
by the parties hereto, and to use in any lawful manner not inconsistent with
this Note and the LOAN AGREEMENT and with any policy of insurance thereon.
BORROWER shall be liable for all documentary and intangible taxes assessed at
closing or from time to time during the life of the transaction.
LENDER may, to the extent permitted by law, with or without notice,
before or after maturity of this Note, transfer or register in the name of its
nominee(s) all or any part of the COLLATERAL and also exercise any or all rights
of collection, conversion or exchange and other similar rights, privileges and
options pertaining to the COLLATERAL; but shall have no duty to exercise any
such rights, privileges or options or to sell or otherwise realize upon any of
the COLLATERAL as herein authorized or to preserve the same and shall not be
responsible for any failure to do so or delay in so doing. As to any COLLATERAL
consisting of instruments or chattel paper, it is agreed that LENDER shall not
be required to take any steps whatever to preserve any rights against prior
parties.
LENDER shall have no custodial or ministerial duties to perform with
regard to COLLATERAL pledged except for its safekeeping; and by way of
explanation and not by way of limitation thereof, LENDER shall incur no
liability for any of the following: loss or depreciation of the COLLATERAL
unless caused by its willful misconduct, failure to present any paper for
payment or protest or to protest or give notice of non-payment or any other
notice with respect to any paper or COLLATERAL; or its failure to present or
surrender for redemption, conversion or exchange any bond, stock, paper or other
security whether in connection with any merger, consolidation, recapitalization,
reorganization or arising out of the intendment or refunding of the original
security or its failure to notify any party hereto that the COLLATERAL should be
so presented or surrendered.
Upon any transfer of this Note, the LENDER may deliver the property
held as security, or any part thereof, to the transferee, as well as any
subsequent holder hereof who shall thereupon become vested with all the power
and rights herein given to the LENDER in respect to the property so transferred
and delivered; and the LENDER shall thereafter be forever relieved and fully
discharged from any liability or responsibility with respect to such property so
transferred but with respect to any property not so transferred, the LENDER
shall retain all rights and powers hereby given.
With prior written consent of LENDER, other COLLATERAL may be
substituted for the original COLLATERAL herein, in which event all rights,
duties, obligations, remedies and security interests provided for, created or
granted shall apply fully to such substitute COLLATERAL.
Upon the occurrence of any of the "EVENTS OF DEFAULT," as hereinafter
defined, LENDER is herewith expressly authorized to exercise its right of
Set-Off or Bank Lien as to any monies deposited in demand, checking, time,
savings or other accounts of any nature maintained in and with it by any of the
undersigned, without advance notice. Said right of Set-Off may also be exercised
and applicable where XXXXXX is indebted to any signer hereof by reason of any
Certificate of Deposit, Note or otherwise.
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WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, XXXXXXXX HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREES, THAT:
(A) NEITHER THE BORROWER NOR 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 PROMISSORY 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 THERETO;
(B) NEITHER THE BORROWER NOR THE LENDER 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;
(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED
BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS;
(D) NEITHER THE BORROWER NOR THE LENDER 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
(E) THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER
INTO THIS TRANSACTION.
EVENTS OF DEFAULT
BORROWER shall be in default (herein referred to as a "Default") under
this AGREEMENT upon the happening of any of the following events, circumstances
or conditions, namely:
(1) Default in the payment or performance of any of the OBLIGATIONS
provided hereunder or in connection herewith or any other OBLIGATIONS of
BORROWER or any "affiliate" (as defined in 11 U.S.C. 101(2), hereinafter
"affiliate") of BORROWER or any endorser, guarantor or surety for BORROWER to
LENDER or any affiliate of LENDER, howsoever created, primary or secondary,
whether direct or indirect, absolute or contingent now or hereafter existing,
due or to be 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 XXXXXXXX in
conjunction herewith; or
(2) 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 the Note or to induce LENDER to make a loan to
BORROWER 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
(3) Death, dissolution, termination of existence, insolvency, business
failure, appointment of a receiver, custodian, or trustee for any part of the
property of, assignment for the benefit of creditors by,
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or the commencement of any proceeding under any bankruptcy or insolvency laws by
or against BORROWER or any endorser, guarantor, or surety for BORROWER, or
(4) BORROWER or any guarantor, endorser, or surety for BORROWER shall
allow the acquisition of substantially all of the business or assets of BORROWER
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 50% of the outstanding stock
or voting power of BORROWER in a single transaction or a series of transactions,
or acquire substantially all of the business or assets or more than 50% of the
outstanding stock or voting power of any other entity, or enter into any
transaction of merger or consolidation without prior written consent of LENDER;
or
(5) Failure of a corporate or limited partnership BORROWER or endorser,
guarantor or surety for said BORROWER to maintain its corporate or limited
partnership (as the case may be) existence in good standing; or
(6) Upon the entry of any monetary judgment or the assessment and/or
filing of any tax lien against BORROWER or any endorser, surety, or guarantor,
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
endorser, surety or guarantor, to specifically include commencement of any
action or proceeding to seize monies of BORROWER or any endorser, surety or
guarantor on deposit in any bank account with LENDER; or
(7) The BORROWER or any endorser, guarantor, or surety for said
BORROWER shall be a debtor, either voluntarily or involuntarily, under (and as
the term debtor is defined in) the Bankruptcy Code or should the BORROWER be
generally not paying BORROWER'S debts as such debts become due; or
(8) Failure of said XXXXXXXX, endorsers, guarantors or
sureties to furnish financial statements or other financial information
reasonably requested by XXXXXX; or
(9) Loss, theft, substantial damage, destruction, sale or encumbrance
to or of any COLLATERAL or the assertion or making of any levy, seizure,
mechanic's or materialman's lien or attachment thereof or thereon; or
(10) If LENDER should otherwise deem itself or the debt created
hereunder unsafe or insecure; or should LENDER, in good faith, believe that the
prospect of payment or other performance is impaired.
REMEDIES ON DEFAULT (INCLUDING POWERS OF SALE)
Upon the occurrence of any 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, LENDER shall then have all the rights and remedies of
a SECURED PARTY under the Uniform Commercial Code, as adopted by the State of
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XXXXXX'S office as set forth herein.
Without limitation thereto, LENDER shall have the following specific
rights and remedies:
(1) To take immediate possession of the COLLATERAL without notice or
resort to legal process; and for such purpose, to enter upon any premises on
which the COLLATERAL or any part thereof may be situated and remove the same
therefrom; or at its option, to render the COLLATERAL unusable. Further, also at
its option, to dispose of said COLLATERAL on BORROWER'S premises.
(2) To require BORROWER to assemble the COLLATERAL and make it
available to LENDER at a place to then be designated by said LENDER, which is
reasonably convenient to both parties.
(3) To exercise its rights of Set-Off 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 BORROWER'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 dispose of COLLATERAL as allowed by the Uniform Commercial Code,
as adopted by the State of XXXXXX'S office as set forth herein, in any County or
place selected by LENDER, at either Private or Public Sale (at which Public Sale
LENDER may be the purchaser) with or without having the COLLATERAL physically
present at said site.
(5) To make or have made any repairs deemed necessary or desirable at
time of repossession, possession or sale, the cost of which is to be charged
against BORROWER.
(6) To apply the proceeds realized from disposition of the COLLATERAL
to satisfy the following terms, in the order here listed:
(a) The cost of reimbursing any person whose interest in the
premises is physically damaged by the entry and removal of the COLLATERAL, upon
XXXXXXXX'S failure to do so; next to
(b) The expenses of taking, removing, holding for sale,
repairing or otherwise preparing for sale and selling of said COLLATERAL
specifically including the LENDER'S reasonable attorneys' fees (including
appellate costs, if any) and both legal and collection expenses; next to
(c) The expense of liquidating any liens, security interest,
attachments or encumbrances superior to the security interests herein created or
described; and finally to
(d) The unpaid principal and all accumulated interest
hereunder and to any other debt owed to LENDER by any signer hereof.
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Any surplus, after the satisfaction of the foregoing items (a) through
(d) 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
COLLATERAL shall fail to satisfy any of the foregoing items (a) through (d),
BORROWER shall forthwith pay deficiency balance to LENDER.
Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Note and other Loan Documents
("Disputes") between or among parties to this Note, shall be resolved by binding
arbitration as provided herein. Institution of a judicial proceeding by a party
does not waive the right of that party to demand arbitration hereunder. Disputes
may include, without limitation, tort claims, counterclaims, disputes as to
whether a matter is subject to arbitration, claims brought as class actions,
claims arising from Loan Documents executed in the future, or claims arising out
of or connected with the transaction reflected by this Note. Arbitration shall
be conducted under and governed by the Commercial Financial Disputes Arbitration
Rules (the "Arbitration Rules") of the American Arbitration Association (the
"AAA") and Title 9 of the U.S. Code. All arbitration hearings shall be conducted
in the city in which the office of Lender first stated above is located. The
expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules shall
be applicable to claims of less than $1,000,000. All applicable statutes of
limitation shall apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted or if such person is not available to serve, the single arbitrator
may be a licensed attorney. Notwithstanding the foregoing, this arbitration does
not apply to disputes under or related to swap agreements.
Notwithstanding the preceding binding arbitration provisions, Lender
and Borrower agree to preserve, without diminution, certain remedies that any
party hereto may employ or exercise freely, independently or in connection with
an arbitration proceeding or after an arbitration action is brought. Xxxxxx and
Borrower shall have the right to proceed in any court of proper jurisdiction or
by self-help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other security
by exercising a power of sale granted under Loan Documents or under applicable
law or by judicial foreclosure and sale, including a proceeding to confirm the
sale; (ii) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a
judgment by confession of judgment. Preservation of these remedies does not
limit the power of an arbitrator to grant similar remedies that may be requested
by a party in a Dispute. Xxxxxx and Xxxxxxxx agree that they shall not have a
remedy of punitive or exemplary damages against the other in any Dispute and
hereby waive any right or claim to punitive or exemplary damages they have now
or which may arise in the future in connection with any Dispute whether the
Dispute is resolved by arbitration or judicially.
No waivers, amendments or modifications shall be valid unless in
writing. Further, this Note shall be governed by and construed under the laws of
the State of the LENDER'S office as set forth herein. All terms and expressions
contained herein which are defined in Articles 1, 3 or 9 of the
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Uniform Commercial Code of the State of XXXXXX'S office set forth herein shall
have the same meaning herein as in said Articles of said Code. No waiver by
LENDER of any default(s) shall operate as a waiver of any other default or the
same default on a future occasion. All rights of LENDER hereunder shall inure to
the benefit of its successors and assigns; and all obligations of BORROWER shall
bind his heirs, executors, administrators, successors and/or assigns.
If more than one person has signed this instrument, 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 instrument 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 the Agreement. "Agreement" refers to the entire
PROMISSORY NOTE herein. In the case of conflict between the terms of this
Agreement and the Mortgage, Loan Agreement and/or Commitment Letter issued in
connection herewith, the priority of controlling terms shall be first this
Agreement, then the Mortgage, the Loan Agreement, then the Commitment Letter.
All payments received during normal banking hours after 2:00 P.M. shall
be deemed received at the opening of the next banking day.
If the scheduled payment amount is insufficient to pay accrued
interest, BORROWER shall make an additional payment of the amount of the accrued
interest in excess of the scheduled payment.
Each of the undersigned, whether BORROWER, sureties, or endorsers; and
all others who may become liable for all or any part of the OBLIGATIONS
evidenced hereby, do hereby, jointly and severally; waive presentment, demand,
protest, notice of protest and/or of dishonor, and also notice of acceleration
of maturity on Default or otherwise. Further, they agree that LENDER may, from
time to time, extend, modify, amend or renew this Note for any period (whether
or not longer than the original period of the Note) and grant any releases,
compromises or indulgences with respect to the note or any extensions,
modifications, amendments or renewals thereof or any security therefor, or to
any party liable thereunder or hereunder, all without notice to or consent of
any of the undersigned and without affecting the liability of the undersigned
hereunder.
PAYMENT of this Note, all obligations of the undersigned BORROWER
(herein "OBLIGATIONS") to LENDER, its successors and assigns, is secured inter
alia, (and includes the terms and obligations set forth therein), by a valid,
subsisting Mortgage and Security Agreement (the "Mortgage") recorded or to be
recorded in the county in which the real property described in the Mortgage (the
"Property") is located, and by this reference is incorporated herein. If this
Note is issued pursuant to a loan agreement of even date herewith, made by and
between BORROWER and LENDER (the "Loan Agreement," which term shall be deemed to
include any construction loan agreement or development loan agreement), then by
this reference, the Loan Agreement is specifically incorporated herein;
If default be made in the payment of any installment under this Note or
if the BORROWER violates any of the terms or breaches any of the conditions of
the Mortgage or the Loan Agreement, the
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entire principal sum and accrued interest shall become due and payable without
notice unless otherwise provided in the Loan Agreement at the option of the
Lender. Failure to exercise this option shall not constitute a waiver of the
right to exercise the same at any other time. Upon such default, the principal
of the Note and any part thereof, and accrued unpaid interest, if any, shall
bear interest at the rate of the then highest legal rate permissible by law.
All parties liable for the payment of this Note agree to pay the LENDER
reasonable attorneys' fees for the services and expenses of counsel employed
after maturity or default to collect this Note (including any appeals relating
to such enforcement proceedings), or to protect or enforce the security hereto,
whether or not suit be brought.
The remedies of LENDER as provided herein, in the Mortgage and Loan
Agreement 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.
BORROWER and all sureties, endorsers and guarantors of this Note hereby
(a) waive demand, presentment for payment, notice of nonpayment, protest, notice
of protest and all other notice, filing of suit and diligence in collecting this
Note, in enforcing any of the security rights or in proceeding against the
Property; (b) agree to any substitution, exchange, addition or release of any of
the Property or the addition or 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 his, their or 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,
rearrangement, renewal or postponement of time of payment of this Note and to
any other indulgency with respect hereto without notice, consent or
consideration to any of the foregoing; and (e) except for the express written
release by LENDER of any such person, they shall be and remain jointly and
severally, directly and primarily, liable for all sums due under this Note, the
Mortgage and the Loan Agreement.
As used herein, the words, "BORROWER" and "LENDER" shall be deemed to
include BORROWER and LENDER as defined herein and their respective heirs,
personal representatives, successors and assigns.
This Note is executed and delivered at the LENDER'S address specified
above and shall be construed and enforced in accordance with the laws of the
State of Florida.
IN WITNESS WHEREOF, the BORROWER, on the day and year first written
above, has caused this Note to be executed under seal by (i) if a corporation,
adoption of the facsimile seal printed hereon for such special occasion and
purpose (or if an impression seal appears hereon by affixing such impression
seal) by its duly authorized officer(s) or, (ii) if by individuals, hereunto
setting their hands and seals.
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THE PUBLISHING COMPANY OF NORTH
AMERICA, INC., a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX, President
"BORROWER"
Xxxxxxxx's Address: 000 Xxxxx Xxxxxxxxxx Xxxx Xxxx., Xxxx Xxxxx, Xxxxxxx 00000
Documentary stamps in the amount of $2,800.00 have been affixed to the original
Mortgage and Security Agreement of even date herewith which secures this Note.
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