1
MODIFICATION OF NOTE AND LOAN DOCUMENT PURCHASE AGREEMENT
---------------------------------------------------------
This MODIFICATION OF NOTE AND LOAN DOCUMENT PURCHASE AGREEMENT
("Modification"), dated and effective as of March 28, 1996, by and
between FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association
("Seller"), PGIP L.L.C., a Missouri limited liability company ("Buyer"),
and PGI INCORPORATED, SUGARMILL XXXXX, INC., BURNT STORE MARINA, INC.
and GULF COAST CREDIT CORPORATION, all Florida corporations (collectively,
the "Borrowers").
RECITALS
--------
A. On or about October 12, 1995, Seller, Buyer and the Borrowers
entered into that certain Note and Loan Document Purchase Agreement
("Original Purchase Agreement") whereby Buyer agreed to purchase and Seller
agreed to sell, all of Seller's right, title and interest in and to that
certain Consolidated Renewal Promissory Note dated as May 13, 1994,
executed by Borrowers in favor of Seller, and that certain Future Advance
Note dated as of October 12, 1995, executed by Borrowers in favor of Seller
(together, the "Notes"), and those other documents listed on Schedule 1
----------
attached thereto (collectively and together with the Notes, "Loan Documents"),
all in accordance the terms and conditions set forth therein.
B. By those certain letter agreements ("Letter Agreements") dated
November 10, 1995, December 15, 1995, January 17, 1996, and February 16,
1996, respectively, the parties agreed to modify the Original Purchase
Agreement to provide that the closing of the transactions contemplated
thereby would occur on or before March 20, 1996. All terms used herein and
not defined herein shall have the meanings as set forth in the Original
Purchase Agreement, as modified by the Letter Agreements (the Original
Purchase Agreement as modified by the Letter Agreements, "Purchase
Agreement").
C. The Buyer has requested, and the Seller has agreed, that the
Purchase Agreement be modified in accordance with the terms and conditions
of this Modification Agreement.
AGREEMENT
---------
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Modification of Purchase Agreement. The Purchase Agreement is
----------------------------------
hereby modified as follows:
a. On the 9th line of Paragraph 1, the words "in immediately
available funds" shall be deleted and the words "in accordance with
Paragraph 3 below" substituted in their place.
2
b. On the fifth line of Paragraph 3, the words "in immediately
available funds" shall be deleted and the following substituted in its place:
"by paying at least $1,760,000 in immediately available funds and
executing a promissory note in the amount of $2,988,001.65 and a
promissory note in the amount of $261,518.90 for the balance for
the purchase price, which promissory notes (together, "Purchase
Notes") shall be in substantially the form of Exhibit B attached
---------
hereto and hereby made a part hereof. The Purchase Notes shall be
secured by a collateral assignment of Notes, Mortgages and Loan
Documents executed by Buyer in favor of Seller, which collateral
assignment shall be in substantially the form attached hereto as
Exhibit C attached hereto and hereby made a part hereof. Buyer and
---------
Seller agree to execute such other documents and instruments as
Seller may reasonably deem to be necessary or desirable to carry
out the intent of this Purchase Agreement, including without
limitation the execution of UCC-3 assignments in connection with
the conveyance of the Loan Documents contemplated hereby and UCC-1
Financing Statements executed in connection with the collateral
assignment described above."
c. The following shall be added as Paragraph 28:
"Covenant of the Borrowers. Notwithstanding anything herein
--------------------------
to the contrary, until the Purchase Notes have been repaid in full,
the Borrowers agree that any and all payments made under the Notes,
the Mortgages and the Loan Documents on or after the date hereof,
shall be made directly to Seller. This obligation shall survive
the closing of the transactions contemplated by this Purchase
Agreement."
2. Miscellaneous.
-------------
a. The closing of the transactions contemplated by the Purchase
Agreement, as modified hereby, shall occur on or before March 28, 1996.
b. Except as modified herein, the Purchase Agreement shall remain
in full force and effect without modification thereto, and is hereby ratified
and affirmed.
c. This Modification will not constitute a novation of the effect
of discharging any liability or obligation evidenced by the Purchase Agreement.
d. This Modification shall be governed by and construed in
accordance with the laws of the state of Florida.
e. This Modification shall be binding upon and shall inure to the
benefit of Seller, Buyer and the Borrower, and their respective successors and
assigns.
-2-
3
f. This Modification may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original,
and all such counterparts shall be constitute one and the same instrument.
This Modification together with the Purchase Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and
supersedes any prior agreement or communication between the parties.
g. The parties have the appropriate authority and have obtained
any authorizations necessary for them to enter into this Modification and
to perform all acts contemplated by this Modification, and to authorize the
person who executes the Modification on its behalf to do so to bind such party.
BUYER: SELLER:
PGIP L.L.C., a Missouri FIRST UNION NATIONAL BANK OF FLORIDA,
limited liability company a national banking association
By: /s/ Xxxxxx X. Love Jr. By: /s/ Xxxxxx X. Xxxxx III
------------------------------ -------------------------------
Name: Xxxxxx X. Love Jr. Name: Xxxxxx X. Xxxxx III
------------------------- --------------------------
Title: Manager Title: Asst. Vice Pres.
------------------------ -------------------------
BORROWERS:
PGI INCORPORATED, a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
--------------------------
Title: President
-------------------------
SUGARMILL XXXXX, INC.,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
--------------------------
Title: President
-------------------------
BURNT STORE MARINA, INC.,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
--------------------------
Title: President
-------------------------
-3-
4
GULF COAST CREDIT CORPORATION,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
--------------------------
Title: President
-------------------------
-4-
5
EXHIBIT B
PURCHASE NOTE
6
ALL DOCUMENTARY STAMP TAXES DUE IN CONNECTION WITH THIS PROMISSORY NOTE HAVE
BEEN PAID AND THE PROPER DOCUMENTARY STAMPS ARE AFFIXED TO THE COLLATERAL
ASSIGNMENT OF NOTES, MORTGAGES AND OTHER LOAN DOCUMENTS WHICH SECURES THIS
PROMISSORY NOTE, AND WHICH IS RECORDED OR SHALL BE RECORDED IN THE PUBLIC
RECORDS OF CITRUS COUNTY, FLORIDA, AND CANCELLED.
PROMISSORY NOTE
---------------
$2,988,001.65 St. Louis, Missouri
March 28, 1996
FOR VALUE RECEIVED, the undersigned, and if more than one, each of them
jointly and severally (hereinafter called "Maker") promises to pay to the
order of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association
(together with any subsequent holder of this Note, hereinafter called
"Holder") at its office in Orlando, Florida, or at such other place as Holder
may from time to time designate, the principal sum of TWO MILLION NINE HUNDRED
EIGHTY EIGHT THOUSAND ONE AND 65/100 DOLLARS ($2,988,001.65), with interest
thereon from the date hereof at an adjustable interest rate of Prime (as
defined below) plus one percent (1.0%) per annum. For purposes of this Note,
"Prime" shall mean that rate of interest published in the Wall Street Journal
from time to time as the "prime rate", it being agreed that Prime is not
necessarily the lowest or best rate at any time charged by Holder. The foregoing
interest and principal will be payable in full on June 1, 1997.
The amounts due or to become due under this Note shall be paid as follows:
a. Commencing on May 1, 1996, and continuing on the first day of
each and every month thereafter, Maker shall pay all accrued and unpaid
interest.
b. A principal payment in the amount of $240,000.00 shall be
due and payable on June 30, 1996.
c. The entire outstanding unpaid principal balance together with
all accrued and unpaid interest and all other sums due hereunder shall be due
and payable on June 1, 1997 ("Maturity Date").
If any payment is more than 10 days late, Maker shall pay Holder, without
notice or demand, a late charge equal to 5% of the payment. The foregoing late
charge is provided to compensate Holder for its expense in collecting and
administering delinquent payments and is not to be construed as interest.
7
After the maturity or due date of this Note, through acceleration or
otherwise, at the election of Holder, interest will accrue on the principal
balance remaining unpaid at the lesser of (i) Prime plus three percent (3.0%)
per annum, or (ii) the highest lawful rate.
All payments hereunder will first be credited to interest and lawful
charges then accrued and the remainder to principal.
All interest on this Note will be computed on the basis of the actual
number of days elapsed in a 360-day year.
The indebtedness evidenced by this Note, and all other indebtedness of
Maker to Holder, however and whenever incurred or evidenced, whether primary,
secondary, direct, indirect, absolute, contingent, sole, joint, or several,
due 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 inter alia by the property
----------
encumbered by security instruments listed in Schedule 1 attached hereto and
----------
hereby made a part hereof, including all proceeds thereof and rights in
connection therewith (which property, together with additions and
substitutions, is called the "Collateral"). Holder will have such rights
with respect to the Collateral as is authorized by law. The parties
expressly agree that all of the covenants, conditions, and agreements
contained in any mortgage securing this Note are hereby made a part of this
Note. If Maker has other loans with Holder, or if Maker takes out other loans
with Holder in the future, collateral securing those loans will also secure
this Note.
Maker, endorser, surety, guarantor, or other parties to this Note (all of
whom are hereinafter called "Obligor") jointly and severally agree as follows:
Additions to, releases, reductions, or exchanges of or substitutions for
the Collateral, payments on account of this loan or increases of the same, or
other loans made partially or wholly upon the Collateral, may from time to
time be made without affecting the provisions of this Note or the Liabilities
of any party hereto. If any of the Collateral is personal property, Holder
shall exercise reasonable care in the custody and preservation of the
Collateral in its possession, and will be deemed to have exercised
reasonable care if it takes such action for that purpose as Maker reasonably
requests in writing, but no omission to comply with any request of Maker will
of itself be deemed a failure to exercise reasonable care. Holder shall not be
bound to take any steps necessary to preserve any rights in the Collateral
against prior parties, and Maker shall take all necessary steps for such
purposes. Holder or its nominee need not collect interest on or principal of
any Collateral or give any notice with respect thereto.
Upon default, Maker shall, at the option of Holder and in addition to all
other remedies available to Holder, within one (1) day after demand, deposit
with Holder as part of the Collateral additional property which is satisfactory
to Holder.
Obligor will be in default under this Note upon: (a) nonpayment when due
of any interest or principal under this Note or under any other note executed
by Maker in favor of Lender, including without limitation, that certain
Promissory Note, dated even date herewith
-2-
8
in the original principal amount of $261,518.90 (any and all other notes
executed by Maker in favor of Holder as herein collectively referred to as the
"Other Notes"); (b) failure of any Obligor to perform any agreement under this
Note or the Other Notes or otherwise a part of this loan transaction or to pay
in full, when due, any liability whatsoever to Holder or any installment
thereof or interest thereon, or failure to pay when due any premium upon any
life insurance policy held as collateral hereunder; (c) the death, dissolution,
termination of existence, insolvency, or business failure of any Obligor,
appointment of a receiver of any part of the property of any such party,
assignment for the benefit of creditors by or the commencement of any
proceedings in bankruptcy or insolvency by or against any Obligor; (d) the
entry of a judgment against any Obligor which is not satisfied or stayed with
appropriate bond within thirty (30) days; (e) the issuing of any attachment or
garnishment, or the filing of any lien, against any property of any obligor;
(f) the taking of possession of any substantial part of the property of any
Obligor at the instance of any governmental authority; (g) the merger,
consolidation, or reorganization of any Obligor; (h) falsity in any material
respect of, or any material omission in, any representation or statement made
to Holder by or on behalf of any Obligor in connection with this Note; (i) the
pledge, assignment, transfer, or granting of a security interest by any Obligor
of any equity in any of the Collateral without the written consent of Holder;
or (j) the failure to promptly deliver to Holder any and all payments made
under any and all loan documents held as collateral for this Note, including
without limitation, payments made under (i) that certain Consolidated Renewal
Promissory Note, dated as of May 13, 1994, executed by PGI Incorporated,
Sugarmill Xxxxx, Inc., Burnt Store Marina, Inc. and Gulf Coast Credit
Corporation (collectively, "PGI Borrowers") and (ii) that certain Future
Advance Note, dated October 12, 1995 executed by the PGI Borrower in favor
of Holder.
Holder will have all of the rights and remedies of a creditor, mortgagee,
and secured party under all applicable law. Without limiting the generality of
the foregoing, upon the occurrence of any default under this Note, Holder may
at its option and without notice or demand: (1) declare the entire unpaid
principal and accrued interest accelerated and due and payable at once,
together with any and all other liabilities of any Obligor or any of such
liabilities selected by Holder; (2) set off against this Note all money owed
by Holder in any capacity to each or any Obligor whether or not due and also
set off against all other liabilities of each Obligor to Holder all money owed
by Holder in any capacity to any Obligor, and Holder will be deemed to have
exercised such right of setoff and to have made a charge against any such
money immediately upon the occurrence of such default although made or entered
on the books subsequent thereto; (3) demand, xxx for, collect, or make any
compromise or settlement it deems desirable with reference to the Collateral;
and (4) take possession or control of any proceeds of the Collateral. To the
extent that any of the Collateral is personal property and the Holder elects
to proceed with respect to it in accordance with the Uniform Commercial Code,
then unless that Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Holder shall
give Maker reasonable notice of the time and place of any public or private
sale thereof. The requirement of reasonable notice will be met if such notice
is mailed, postage prepaid, to any Obligor at the address given below or at
any other address shown on the
-3-
9
records of Holder at least twenty days before the time of sale. Upon
disposition of any Collateral after the occurrence of any default hereunder,
Maker will be and will remain liable for any deficiency; and Holder shall
account to Maker for any surplus, but Holder shall have the right to apply
all or part of such surplus (or to hold the same as a reserve) against any
and all other Liabilities of each or any Obligor to Holder.
Holder may, at any time whether or not this Note is due: (i) pledge or
transfer this Note and its interest in the Collateral, whereupon Holder may be
relieved of all duties and responsibilities hereunder and relieved from any and
all liability with respect to any Collateral so pledged or transferred, and
pledgee or transferee will for all purposes stand in the place of Holder
hereunder and have all the rights of Holder hereunder; (ii) transfer the whole
or any part of the Collateral into the name of itself or its nominee; (iii)
notify the Obligor on any Collateral to make payment to Holder of any amounts
due or to become due thereon; and (iv) exercise all other rights necessary or
required, in Holder's discretion, in order to protect its interests under this
Note.
In no event xxxx Xxxxxx be entitled to unearned or unaccrued interest or
other charges or rebates, except as may be authorized by law; nor will any
such party be entitled or receive at any time any such charges not allowed or
permitted by law, or any interest in excess of the highest lawful rate. Any
payments of interest in excess of the highest lawful rate will be credited by
Holder on interest accrued or principal or both; except that Maker will have
an option to demand refund as to any such interest or charges in excess of the
highest lawful rate.
No delay or omission on the part of Holder in exercising any right
hereunder will operate as a waiver of such right or of any other rights under
this Note. Presentment, demand, protest, notice of dishonor, and all other
notices are hereby waived by each and every Obligor. Obligor, jointly and
severally, promises and agrees to pay all costs of collection and reasonable
attorney's fees, including reasonable attorney's fees of any suit, out of
court, in trial, on appeal, in bankruptcy proceedings or otherwise, incurred
or paid by Holder in enforcing this Note or preserving any right or interest
of Holder hereunder. All notices given in connection with this Note must be
sent by certified mail, return receipt requested, and will be deemed given
three days after mailing or upon actual receipt, whichever is sooner. Any
notice to Maker shall be addressed to Maker, Suite 1400, 000 Xxxxx Xxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx or to any other
address shown on Holder's records.
Each Obligor hereby expressly consents to any and all extensions,
modifications, and renewals, in whole or in part, including but not limited to
changes in payment schedules and interest rates, and all delays in time of
payment or other performance which Holder may grant or permit at any time and
from time to time without limitation and without any notice to or further
consent of any Obligor. Each Obligor will also be bound by each of the
foregoing terms, without the requirement that Holder first go against any
security interest otherwise held by Holder.
-4-
10
Each Obligor hereby expressly agrees to indemnify and hold Holder harmless
against any and all Florida documentary stamp taxes and/or intangible personal
property taxes which may be deemed to be due and payable in respect of this
Note, the indebtedness evidenced thereby and any instrument securing any
indebtedness evidenced thereby. In order to secure the performance and
discharge of Obligor's obligations under the immediately preceding sentence,
but not in lieu of such obligations, Obligor, upon execution of this Note,
will pay over to Holder sufficient funds to satisfy the Florida recurring
intangible personal property tax which shall become due and payable as of
January 1, 1997, with respect to the outstanding indebtedness evidenced by
this Note. Such deposit shall not be, nor be deemed to be, trust funds but
may be commingled with the general funds of Holder, and no interest shall be
payable in respect thereof. In the event of a default under any of the terms,
covenants and conditions of this Note, Holder may apply to the reduction of
the sum secured hereby, in such manner as Holder shall determine, any amount
under this Paragraph any amount remaining to Obligor's credit.
WAIVER OF JURY TRIAL. OBLIGOR AND HOLDER (BY ITS ACCEPTANCE OF THIS
--------------------
NOTE) HEREBY AGREE AS FOLLOWS: (A) EACH OF THEM KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION (AN "ACTION")
BASED UPON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY
RELATED DOCUMENTS, INSTRUMENTS, OR AGREEMENTS (WHETHER ORAL OR WRITTEN AND
WHETHER EXPRESS OR IMPLIED AS A RESULT OF A COURSE OF DEALING, A COURSE OF
CONDUCT, A STATEMENT, OR OTHER ACTION OF EITHER PARTY); (B) NEITHER OF THEM
MAY SEEK A TRIAL BY JURY IN ANY SUCH ACTION; (C) NEITHER OF THEM WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION (IN WHICH A JURY TRIAL HAS BEEN WAIVED) WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND (D)
NEITHER OF THEM HAS IN ANY WAY AGREED WITH OR REPRESENTED TO THE OTHER OF THEM
THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
MAKERS:
PGIP L.L.C., a Missouri limited liability
company
By:-------------------------------------
Name:--------------------------------
Title:-------------------------------
-5-
11
SCHEDULE 1
----------
1. Collateral Assignment of Notes, Mortgages and Other Loan Documents dated
even date herewith, made by Maker in favor of Holder.
-6-
12
ALL DOCUMENTARY STAMP TAXES DUE IN CONNECTION WITH THIS PROMISSORY NOTE HAVE
BEEN PAID AND THE PROPER DOCUMENTARY STAMPS ARE AFFIXED TO THE COLLATERAL
ASSIGNMENT OF NOTES, MORTGAGES AND OTHER LOAN DOCUMENTS WHICH SECURES THIS
PROMISSORY NOTE, AND WHICH IS RECORDED OR SHALL BE RECORDED IN THE PUBLIC
RECORDS OF CITRUS COUNTY, FLORIDA, AND CANCELLED.
PROMISSORY NOTE
---------------
$261,518.90 St. Louis, Missouri
March 28, 1996
FOR VALUE RECEIVED, the undersigned, and if more than one, each of them
jointly and severally (hereinafter called "Maker") promises to pay to the
order of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association
(together with any subsequent holder of this Note, hereinafter called
"Holder") at its office in Orlando, Florida, or at such other place as Holder
may from time to time designate, the principal sum of TWO HUNDRED SIXTY
ONE THOUSAND FIVE HUNDRED EIGHTEEN AND 90/100 DOLLARS ($261,518.90), with
interest thereon from the date hereof at an adjustable interest rate of Prime
(as defined below) plus one percent (1.0%) per annum. For purposes of this
Note, "Prime" shall mean that rate of interest published in the Wall Street
Journal from time to time as the "prime rate", it being agreed that Prime is
not necessarily the lowest or best rate at any time charged by Holder. The
foregoing interest and principal will be payable in full on June 1, 1997.
The amounts due or to become due under this Note shall be paid as follows:
a. Commencing on May 1, 1996, and continuing on the first day of
each and every month thereafter, Maker shall pay all accrued and unpaid
interest.
b. The entire outstanding unpaid principal balance together with
all accrued and unpaid interest and all other sums due hereunder shall be due
and payable on June 1, 1997 ("Maturity Date").
If any payment is more than 10 days late, Maker shall pay Holder, without
notice or demand, a late charge equal to 5% of the payment. The foregoing late
charge is provided to compensate Holder for its expense in collecting and
administering delinquent payments and is not to be construed as interest.
After the maturity or due date of this Note, through acceleration or
otherwise, at the election of Holder, interest will accrue on the principal
balance remaining unpaid at the lesser of (i) Prime plus three percent (3.0%)
per annum, or (ii) the highest lawful rate.
13
All payments hereunder will first be credited to interest and lawful
charges then accrued and the remainder to principal.
All interest on this Note will be computed on the basis of the actual
number of days elapsed in a 360-day year.
The indebtedness evidenced by this Note, and all other indebtedness of
Maker to Holder, however and whenever incurred or evidenced, whether primary,
secondary, direct, indirect, absolute, contingent, sole, joint, or several,
due 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 inter alia by the property
----------
encumbered by security instruments listed in Schedule 1 attached hereto and
----------
hereby made a part hereof, including all proceeds thereof and rights in
connection therewith (which property, together with additions and
substitutions, is called the "Collateral"). Holder will have such rights with
respect to the Collateral as is authorized by law. The parties expressly agree
that all of the covenants, conditions, and agreements contained in any
mortgage securing this Note are hereby made a part of this Note. If Maker has
other loans with Holder, or if Maker takes out other loans with Holder in the
future, collateral securing those loans will also secure this Note.
Maker, endorser, surety, guarantor, or other parties to this Note (all of
whom are hereinafter called "Obligor") jointly and severally agree as follows:
Additions to, releases, reductions, or exchanges of or substitutions for
the Collateral, payments on account of this loan or increases of the same, or
other loans made partially or wholly upon the Collateral, may from time to time
be made without affecting the provisions of this Note or the Liabilities of any
party hereto. If any of the Collateral is personal property, Holder shall
exercise reasonable care in the custody and preservation of the Collateral in
its possession, and will be deemed to have exercised reasonable care if it
takes such action for that purpose as Maker reasonably requests in writing,
but no omission to comply with any request of Maker will of itself be deemed
a failure to exercise reasonable care. Holder shall not be bound to take any
steps necessary to preserve any rights in the Collateral against prior parties,
and Maker shall take all necessary steps for such purposes. Holder or its
nominee need not collect interest on or principal of any Collateral or give any
notice with respect thereto.
Upon default, Maker shall, at the option of Holder and in addition to all
other remedies available to Holder, within one (1) day after demand, deposit
with Holder as part of the Collateral additional property which is satisfactory
to Holder.
Obligor will be in default under this Note upon: (a) nonpayment when due
of any interest or principal under this Note or under any other note executed
by Maker in favor of Lender, including without limitation, that certain
Promissory Note, dated even date herewith in the original principal amount of
$2,748,001.65 (any and all other notes executed by Maker in favor of Holder as
herein collectively referred to as the "Other Notes"); (b) failure of any
Obligor to perform any agreement under this Note or the Other Notes or
otherwise a part of this loan transaction or to pay in full, when due, any
liability whatsoever to Holder or any
-2-
14
installment thereof or interest thereon, or failure to pay when due any
premium upon any life insurance policy held as collateral hereunder; (c) the
death, dissolution, termination of existence, insolvency, or business failure
of any Obligor, appointment of a receiver of any part of the property of any
such party, assignment for the benefit of creditors by or the commencement of
any proceedings in bankruptcy or insolvency by or against any Obligor; (d) the
entry of a judgment against any Obligor which is not satisfied or stayed with
appropriate bond within thirty (30) days; (e) the issuing of any attachment or
garnishment, or the filing of any lien, against any property of any obligor;
(f) the taking of possession of any substantial part of the property of any
Obligor at the instance of any governmental authority; (g) the merger,
consolidation, or reorganization of any Obligor; (h) falsity in any material
respect of, or any material omission in, any representation or statement made
to Holder by or on behalf of any Obligor in connection with this Note; (i) the
pledge, assignment, transfer, or granting of a security interest by any Obligor
of any equity in any of the Collateral without the written consent of Holder;
or (j) the failure to promptly deliver to Holder any and all payments made
under any and all loan documents held as collateral for this Note, including
without limitation, payments made under (i) that certain Consolidated Renewal
Promissory Note, dated as of May 13, 1994, executed by PGI Incorporated,
Sugarmill Xxxxx, Inc., Burnt Store Marina, Inc. and Gulf Coast Credit
Corporation (collectively, "PGI Borrowers") and (ii) that certain Future
Advance Note, dated October 12, 1995 executed by the PGI Borrower in favor
of Holder.
Holder will have all of the rights and remedies of a creditor, mortgagee,
and secured party under all applicable law. Without limiting the generality of
the foregoing, upon the occurrence of any default under this Note, Holder may
at its option and without notice or demand: (1) declare the entire unpaid
principal and accrued interest accelerated and due and payable at once,
together with any and all other liabilities of any Obligor or any of such
liabilities selected by Holder; (2) set off against this Note all money owed
by Holder in any capacity to each or any Obligor whether or not due and also
set off against all other liabilities of each Obligor to Holder all money owed
by Holder in any capacity to any Obligor, and Holder will be deemed to have
exercised such right of setoff and to have made a charge against any such
money immediately upon the occurrence of such default although made or entered
on the books subsequent thereto; (3) demand, xxx for, collect, or make any
compromise or settlement it deems desirable with reference to the Collateral;
and (4) take possession or control of any proceeds of the Collateral. To the
extent that any of the Collateral is personal property and the Holder elects
to proceed with respect to it in accordance with the Uniform Commercial Code,
then unless that Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Holder shall
give Maker reasonable notice of the time and place of any public or private
sale thereof. The requirement of reasonable notice will be met if such notice
is mailed, postage prepaid, to any Obligor at the address given below or at
any other address shown on the records of Holder at least twenty days before
the time of sale. Upon disposition of any Collateral after the occurrence of
any default hereunder, Maker will be and will remain liable for any
deficiency; and Holder shall account to Maker for any surplus, but Holder
shall have
-3-
15
the right to apply all or part of such surplus (or to hold the same as a
reserve) against any and all other Liabilities of each or any Obligor to
Holder.
Holder may, at any time whether or not this Note is due: (i) pledge or
transfer this Note and its interest in the Collateral, whereupon Holder may be
relieved of all duties and responsibilities hereunder and relieved from any and
all liability with respect to any Collateral so pledged or transferred, and
pledgee or transferee will for all purposes stand in the place of Holder
hereunder and have all the rights of Holder hereunder; (ii) transfer the whole
or any part of the Collateral into the name of itself or its nominee; (iii)
notify the Obligor on any Collateral to make payment to Holder of any amounts
due or to become due thereon; and (iv) exercise all other rights necessary or
required, in Holder's discretion, in order to protect its interests under this
Note.
In no event xxxx Xxxxxx be entitled to unearned or unaccrued interest or
other charges or rebates, except as may be authorized by law; nor will any
such party be entitled or receive at any time any such charges not allowed or
permitted by law, or any interest in excess of the highest lawful rate. Any
payments of interest in excess of the highest lawful rate will be credited by
Holder on interest accrued or principal or both; except that Maker will have
an option to demand refund as to any such interest or charges in excess of the
highest lawful rate.
No delay or omission on the part of Holder in exercising any right
hereunder will operate as a waiver of such right or of any other rights under
this Note. Presentment, demand, protest, notice of dishonor, and all other
notices are hereby waived by each and every Obligor. Obligor, jointly and
severally, promises and agrees to pay all costs of collection and reasonable
attorney's fees, including reasonable attorney's fees of any suit, out of
court, in trial, on appeal, in bankruptcy proceedings or otherwise, incurred
or paid by Holder in enforcing this Note or preserving any right or interest
of Holder hereunder. All notices given in connection with this Note must be
sent by certified mail, return receipt requested, and will be deemed given
three days after mailing or upon actual receipt, whichever is sooner. Any
notice to Maker shall be addressed to Maker, Suite 1400, 000 Xxxxx Xxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx or to any other
address shown on Holder's records.
Each Obligor hereby expressly consents to any and all extensions,
modifications, and renewals, in whole or in part, including but not limited to
changes in payment schedules and interest rates, and all delays in time of
payment or other performance which Holder may grant or permit at any time and
from time to time without limitation and without any notice to or further
consent of any Obligor. Each Obligor will also be bound by each of the
foregoing terms, without the requirement that Holder first go against any
security interest otherwise held by Holder.
Each Obligor hereby expressly agrees to indemnify and hold Holder harmless
against any and all Florida documentary stamp taxes and/or intangible personal
property taxes which
-4-
16
may be deemed to be due and payable in respect of this Note, the indebtedness
evidenced thereby and any instrument securing any indebtedness evidenced
thereby. In order to secure the performance and discharge of Obligor's
obligations under the immediately preceding sentence, but not in lieu of such
obligations, Obligor, upon execution of this Note will pay over to Holder
sufficient funds to satisfy the Florida recurring intangible personal property
tax which shall become due and payable as of January 1, 1997 with respect to
the outstanding indebtedness evidenced by this Note. Such deposit shall not
be, nor be deemed to be, trust funds but may be commingled with the general
funds of Holder, and no interest shall be payable in respect thereof. In the
event of a default under any of the terms, covenants and conditions of this
Note, Holder may apply to the reduction of the sum secured hereby, in such
manner as Holder shall determine, any amount under this Paragraph any amount
remaining to Obligor's credit.
WAIVER OF JURY TRIAL. OBLIGOR AND HOLDER (BY ITS ACCEPTANCE OF THIS
--------------------
NOTE) HEREBY AGREE AS FOLLOWS: (A) EACH OF THEM KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION (AN "ACTION")
BASED UPON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY
RELATED DOCUMENTS, INSTRUMENTS, OR AGREEMENTS (WHETHER ORAL OR WRITTEN AND
WHETHER EXPRESS OR IMPLIED AS A RESULT OF A COURSE OF DEALING, A COURSE OF
CONDUCT, A STATEMENT, OR OTHER ACTION OF EITHER PARTY); (B) NEITHER OF THEM
MAY SEEK A TRIAL BY JURY IN ANY SUCH ACTION; (C) NEITHER OF THEM WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION (IN WHICH A JURY TRIAL HAS BEEN WAIVED) WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND (D)
NEITHER OF THEM HAS IN ANY WAY AGREED WITH OR REPRESENTED TO THE OTHER OF THEM
THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
MAKERS:
PGIP L.L.C., a Missouri limited liability
company
By:-------------------------------------
Name:--------------------------------
Title:-------------------------------
-5-
17
SCHEDULE 1
----------
1. Collateral Assignment of Notes, Mortgages and Other Loan Documents dated
even date herewith, made by Maker in favor of Holder.
-6-
18
EXHIBIT C
COLLATERAL ASSIGNMENT OF NOTES,
MORTGAGES AND LOAN DOCUMENTS
19
THIS INSTRUMENT PREPARED BY AND RETURN TO:
XXXXXXX X. XXXXXXXXX, ESQUIRE
CARLTON, FIELDS, XXXX, XXXXXXXX,
XXXXX & XXXXXX, P.A.
XXXX XXXXXX XXX 0000
XXXXX, XXXXXXX 00000
COUNTERPART ORIGINALS OF THIS COLLATERAL ASSIGNMENT OF NOTES, MORTGAGES AND
OTHER LOAN DOCUMENTS ARE BEING RECORDED IN CITRUS COUNTY AND HERNANDO COUNTY,
FLORIDA. FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $11,373.00 ARE
BEING PAID UPON THE RECORDATION OF THIS INSTRUMENT IN CITRUS COUNTY, FLORIDA.
COLLATERAL ASSIGNMENT OF NOTES,
MORTGAGES AND OTHER LOAN DOCUMENTS
THIS COLLATERAL ASSIGNMENT OF NOTES, MORTGAGES AND OTHER LOAN DOCUMENTS
("Assignment") is made as of March 28, 1996 by PGIP L.L.C., a Missouri limited
----------
liability company ("Assignor"), having a mailing address of 000 Xxxxx Xxxxxx,
--------
Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, to and for the benefit of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association ("Assignee"), having
--------
a mailing address of Special Assets Department (FL 2202), 000 Xxxxx Xxxxxxxx,
Xxxxxxx, Xxxxxxx 00000.
BACKGROUND
In connection with that certain Note and Loan Department Purchase
Agreement executed by and between Assignee, Assignor, and PGI Incorporated,
Sugarmill Xxxxx, Inc., Burnt Store Marina, Inc., and Gulf Coast Credit
Corporation (collectively, "Borrowers") dated effective October 12, 1995, as
---------
amended by those certain letter agreements, dated November 10, 1995, December
15, 1995, January 17, 1996, and February 16, 1996, and as further amended
by that certain Modification of Note and Loan Document Purchase Agreement dated
and effective as of even date herewith (as amended, "Purchase Agreement"),
------------------
Assignor executed that certain Promissory Note in the original principal
amount of $2,988,001.65 in favor of Assignee ("Note A") and that certain
------
Promissory Note in the original principal amount of $261,518.90 in favor of
Assignee ("Note B"; Note B
------
20
together with Note A, the "Notes"). As security for repayment of the Notes,
-----
Assignor has agreed to assign to Assignee all of Assignor's right, title and
interest in and to: (1) that certain Consolidated Renewal Promissory Note,
dated as of May 13, 1994, executed by Borrowers in favor of Assignee, in the
original principal amount of $7,001,615.29 ("Consolidated Note"), which
-----------------
Consolidated Note was assigned to Assignor pursuant to that certain Assignment
of Notes, Mortgages and Loan Documents executed by Assignee in favor
of Assignor dated effective of even date herewith ("Assignment of Notes");
-------------------
(2) that certain Future Advance Note, dated October 12, 1995, executed by
Borrowers in favor of Assignee, in the original principal amount of
$241,617.65 ("Future Advance Note"), which Future Advance Note was assigned
-------------------
to Assignor pursuant to the provisions of the Assignment of Notes; and (3) any
and all other documents evidencing or securing any portion of the indebtedness
evidenced by the Consolidated Note or the Future Advance Note, including
without limitation, the documents listed in Exhibit A attached hereto and
---------
made a part hereof (collectively, the "Other Loan Documents"), which Other
--------------------
Loan Documents were assigned to Assignor pursuant to the provisions of the
Assignment of Notes. Hereinafter, the Consolidated Note, the Future Advance
Note and the Other Loan Documents shall be referred to herein, collectively,
as the "Collateral Loan Documents."
-------------------------
OPERATIVE TERMS
The parties agree as follows:
1. As security for payment and satisfaction of all Assignor's
liabilities and obligations to Assignee, including without limitation,
Assignor's liability to Assignee under the Notes, Assignor hereby assigns to
Assignee and its successors and assigns all of Assignor's present and
hereafter acquired right, title, and interest in and to the Collateral Loan
Documents and in all money and payments that are due or to become due
(including interest and penalties) under the Collateral Loan Documents.
Concurrently with its execution of this Assignment, Assignor shall endorse
the Consolidated Note and the Future Advance Note payable to Assignee and
deliver the Collateral Loan Documents to Assignee; and, hereafter, at the
request of Assignee, Assignor shall execute and deliver to Assignee any other
documents and instruments as Assignee, in its sole discretion, determines are
necessary to perfect or maintain Assignee's security interest in the Collateral
Loan Documents. Assignor hereby irrevocably appoints Assignee as Assignor's
attorney-in-fact to execute and file on Assignor's behalf any financing
statements, and any refilings and continuations thereof, as Assignee deems
necessary or appropriate to perfect Assignee's security interests granted in
this Assignment.
2. The parties intend that this instrument create a present assignment
of the Collateral Loan Documents. Until all amounts due under the Notes have
been repaid in full, Assignor shall not collect any payments under the
Collateral Loan Documents. If Assignor receives any such payment from the
Borrowers before all amounts due under the Notes have been repaid in full,
Assignor shall be deemed to be holding the same in trust for Assignee
2
21
and shall immediately deliver the same to Assignee. Upon repayment of all sums
due pursuant to the Notes in full, Assignee shall endorse the Consolidated
Note and Future Advance Note payable to Assignor and assign the Collateral
Loan Documents to Assignor and release this Assignment and any and all other
assignments, pledges or UCC's held by Assignee in connection with this
Assignment. THE BORROWERS ARE HEREBY IRREVOCABLY AUTHORIZED AND DIRECTED BY
ASSIGNOR TO MAKE ALL PAYMENTS UNDER THE COLLATERAL LOAN DOCUMENTS DIRECTLY
TO ASSIGNEE UNTIL THE NOTES HAVE BEEN PAID IN FULL AND TO RELY UPON ANY AND
ALL INSTRUCTIONS FROM ASSIGNEE, WITHOUT HAVING ANY RIGHT OR DUTY TO INQUIRE
AS TO WHETHER AN EVENT OF DEFAULT HAS OCCURRED UNDER THIS ASSIGNMENT OR THE
NOTES.
3. Assignor represents and warrants to Assignee that (a) Assignor has
received consideration sufficient to induce Assignor to execute and deliver
this Assignment and to perform all its obligations under this Assignment;
(b) Assignor has full authority to execute, deliver and perform its obligations
under this Assignment; (c) upon the delivery to Assignee of this Assignment
and the Collateral Loan Documents, Assignee will have a first perfected
security interest in the Collateral Loan Documents, and no person or entity,
other than Assignor, Assignee and the Borrowers will have any interest in the
respective Collateral Loan Documents; and (d) each of the Collateral Loan
Documents is enforceable in accordance with its respective terms, and, the
Borrowers have no defenses, counterclaims, or offsets to its obligations under
the Collateral Loan Documents.
4. Assignor covenants not to sell, assign, hypothecate, encumber,
amend, subordinate, modify, renew, replace or accept any prepayment (by
acceleration or otherwise) of the Collateral Loan Documents without the prior
written consent of Assignee. If any of the foregoing events occurs (with or
without the consent of Assignee), Assignor immediately shall notify Assignee
of the occurrence of the event, and Assignee, in its sole discretion and
without limiting any other of its rights under this Assignment, may require
Assignor to prepay the Note by the full amount of the consideration, proceeds,
or payments received by Assignor in connection with the event.
5. Assignor shall timely perform all its obligations under the
Collateral Loan Documents and immediately shall notify Assignee of any default
or breach by Assignor or the Borrowers under the Collateral Loan Documents.
Assignor shall not, without the prior written consent of Assignee, (i) waive
any breach or default by the Borrowers under the terms of the Collateral Loan
Documents, (ii) permit any modification or termination of the Collateral Loan
Documents or (iii) release any of the collateral encumbered by the Mortgages
on the Other Loan Documents.
6. If the Borrowers default under the Collateral Loan Documents (i) by
permitting or committing any waste, impairment or deterioration of the
property encumbered by the Collateral Loan Documents or taking any action
which would increase the risk of damage to such property, (ii) by failing to pay
promptly when due any and all taxes, assessments, dues, charges, fees, levies,
fines, impositions, liabilities and encumbrances of every kind, now or
hereafter imposed, levied or assessed upon or against the property encumbered
by the Collateral Loan Documents, or (iii) by selling, conveying, transferring,
3
22
leasing, or further encumbering the property encumbered by the Collateral Loan
Documents without making the appropriate principal reduction payment
thereunder, then, Assignee, at its sole option, may, at Assignor's sole
expense, on Assignee's own behalf or otherwise, enforce the Collateral Loan
Documents and exercise any or all other remedies available to Assignor under
the Collateral Loan Documents with or without joining Assignor as a party. The
foregoing rights of Assignee are cumulative, and Assignee may exercise any one
or more of them without waiving its rights to exercise the others.
7. If Assignor becomes obligated under this Assignment to pay any
amounts to Assignee, such amounts will be secured by this Assignment and
Assignor promptly shall pay such amounts to Assignee, together with interest
thereon, from the date when due, at the maximum rate allowable under applicable
law. At its option, Assignee may collect any or all such amounts, together
with accrued interest, if any, from payments by the Borrowers under the
Consolidated Note and Future Advance Note.
8. This Assignment does not create any obligation or liability on the
part of Assignee, and Assignor shall indemnify Assignee from any claim, costs,
expense or liability incurred by Assignee as a result of this Assignment,
including, without limitation, attorneys' and paralegals' fees and costs
incurred in the enforcement of this Assignment (including, without
limitation, attorneys' and paralegals' fees and costs incurred in any
litigation, mediation, arbitration, bankruptcy and administrative proceedings,
and any appeals therefrom).
9. Upon payment in full of the indebtedness evidenced by the Note and
the satisfaction in full of all other obligations of Assignor under this
Assignment, Assignee shall reassign the Collateral Loan Documents to
Assignor, and this Assignment will be null and void and have no further force
or effect.
10. This Assignment binds and inures to the benefit of the respective
successors and assigns of Assignor and Assignee.
SIGNED, SEALED AND DELIVERED ASSIGNOR:
IN THE PRESENCE OF:
PGIP L.L.C., a Missouri limited
liability company
----------------------------------
(Signature)
---------------------------------- By:------------------------------------
(Printed Name) Name:-----------------------------
Title:----------------------------
----------------------------------
(Signature)
----------------------------------
(Printed Name)
4
23
ASSIGNEE:
FIRST UNION NATIONAL
BANK OF FLORIDA, a national
banking association
---------------------------------- [CORPORATE SEAL]
(Signature)
---------------------------------- By:------------------------------------
(Printed Name) Name:-----------------------------
Title:----------------------------
----------------------------------
(Signature)
----------------------------------
(Printed Name)
STATE OF---------------
COUNTY OF--------------
The foregoing instrument was acknowledged before me this ------ day
of ------, 1996, by -------------------------------- as ----------------------
of PGIP L.L.C., a Missouri limited liability company, on behalf of the company.
He/She is personally known to me or has produced ----------- (state) driver's
license no.--------------------------------------- as identification.
My Commission Expires: ---------------------------------------
Notary Public (Signature)
(AFFIX NOTARY SEAL) ---------------------------------------
(Printed Name)
---------------------------------------
(Title or Rank)
---------------------------------------
(Serial Number, if any)
5
24
STATE OF---------------
COUNTY OF--------------
The foregoing instrument was acknowledged before me this ------ day
of ------, 1996, by -------------------------------- as ----------------------
of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association, on
behalf of the company. He/She is personally known to me or has produced
----------- (state) driver's license no.--------------------- as identification.
My Commission Expires: ---------------------------------------
Notary Public (Signature)
(AFFIX NOTARY SEAL) ---------------------------------------
(Printed Name)
---------------------------------------
(Title or Rank)
---------------------------------------
(Serial Number, if any)
6
25
EXHIBIT A
---------
LOAN DOCUMENTS
--------------
1. Substitute Renewal Mortgage No. 1, dated as of October 19, 1985,
executed by Borrowers in favor of Naples, and recorded in the Public
Records of Citrus County, Florida at O.R. Book 682, Page 2140, and in
the Public Records of Hernando County, Florida, at O.R. Book ---,
Page ----, as each of the same may have been amended from time to time.
2. Substitute Renewal Mortgage No. 2, dated as of October 19, 1985,
executed by Punta Gorda Isles, Inc., Punta Gorda Developers, Inc. and
Burnt Store Marina, Inc. in favor of The First National Bank of Chicago,
as Agent ("FNBC"), and recorded at O.R. Book 837, Page 959 of the
----
Public Records of Charlotte County, Florida, and recorded at O.R.
Book 682, Page 1952 of the Public Records of Citrus County, Florida,
which Substitute Renewal Mortgage No. 2 was assigned by FNBC to Naples
pursuant to: (i) that certain Assignment of Mortgage recorded at
O.R. Book 683, Page 187 of the Public Records of Citrus County, Florida,
(ii) that certain Assignment of Mortgages recorded at O.R. Book 683,
Page 190 of the Public Records of Citrus County, Florida and O.R.
Book 683, Page 195 of the Public Records of Citrus County, Florida,
as the same may have been amended from time to time.
3. Restated Loan Agreement No. 1, dated October 19, 1985, executed between
Naples and Borrowers as the same may have been amended from time to time.
4. Divided Security Agreement and Pledge of Collateral No. 1, dated
October 19, 1985, executed by Borrowers in favor of Naples, as the same
may have been amended from time to time.
5. Divided Assignment of Notes, Mortgages, Contracts and Agreements for Deed
No. 1 dated as of October 19, 1985, executed by Borrowers in favor of
Naples, as the same may have been amended from time to time.
6. Platinum Point Loan Documents, as described in that Thirteenth Mortgage
& Loan Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
7. Tugboat Loan Documents, as described in that Thirteenth Mortgage & Loan
Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
26
8. Loan and Security Agreement, dated October 1, 1984, executed by PGI, PGD,
Marina, FNBC, CREI or FNB, as agent ("Land Loan Agreement"), a portion of
-------------------
which Agreement was assigned by FNBC and CREI to Naples pursuant to a
Note Purchase Agreement, dated October 19, 1985, as the same may have
been amended from time to time.
9. Loan and Security Agreement, dated as of October 1, 1984, executed among
PGI, PGD, Marina, FNBC, CREI and FNBC, as Agent, as the same may have
been modified from time to time ("FNBC Receivables Loan Agreement"),
-------------------------------
a portion of which Agreement was assigned by FNBC and CREI to Naples
pursuant to a Note Purchase Agreement, dated October 19, 1985, as the
same may have been amended from time to time.
10. Restated Loan and Security Agreement, dated as of March 25, 1987,
executed by and among Borrowers and Naples, as the same may have been
amended from time to time ["to be read in conjunction with Restated Loan
Agreement No. 1" - item 3 above]
11. Pledge Agreement, dated as of March 25, 1987, executed among Punta Gorda
Isles, Inc., Punta Gorda Developers, Inc. and Naples regarding stock
collateral, as the same may have been amended from time to time.
12. Security Agreement, dated March 25, 1987, executed among Borrowers and
Naples regarding blanket lien on all of Borrower's assets, as the same
may have been amended from time to time.
13. Together with Assignor's right, title and interest, if any, in any
additional security instruments securing the indebtedness under the
Consolidated Note and the Future Advance Note.
A-2
27
Prepared By and Return to:
Xxxx X. XxXxxxxxx, Esquire
Peper, Martin, Xxxxxx, Xxxxxxx and Hetlage
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
ASSIGNMENT OF NOTES, MORTGAGES AND LOAN DOCUMENTS
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association,
("Assignor"), hereby assigns to PGIP L.L.C., a Missouri limited liability
--------
company ("Assignee"), without recourse, warranty or representation of any
--------
kind, except as expressly stated in paragraph 9 "Representations and Warranties
of Seller," of that certain Note and Loan Document Purchase Agreement, dated
as of October 12, 1995, by and between Assignor and Assignee (the "Agreement"),
---------
all of its right, title and interest in and to that certain Consolidated
Renewal Promissory Note, dated as of May 13, 1994, executed by PGI,
Incorporated, Sugarmill Xxxxx, Inc., Burnt Store Marina, Inc. and Gulf Coast
Credit Corporation (collectively, "Borrowers") in favor of Assignor, in the
---------
original principal amount of $7,001,615.29 ("Consolidated Note"), that certain
-----------------
Future Advance Note, dated October 12, 1995, executed by Borrowers in favor of
Assignor, in the original principal amount of $241,617.25 ("Future Advance
--------------
Note"), and any other documents evidencing or securing any portion of the
----
indebtedness evidenced by the Consolidated Note or the Future Advance Note,
including, without limitation, the documents listed in Exhibit A attached
---------
hereto and made a part hereof to have and to hold forever.
WITNESSES: FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx III
---------------------------------- ------------------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx III
----------------------------- -----------------------------
Title: Asst. Vice Pres.
----------------------------
/s/ Xxxx X. XxXxxxxxx
----------------------------------
Name: Xxxx X. XxXxxxxxx [CORPORATE SEAL]
-----------------------------
Date: 3/28/96
----------------------------------
Post Office Address:
Special Assets Department (FL 2202)
000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000
28
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 28th day of
March, 1996, by Xxxxxx X. Xxxxx III as Asst. Vice Pres. of First Union
National Bank of Florida, a national banking association, on behalf of the
Bank. He/she is personally known to me or has produced -------------- (state)
--
drivers license no. ------------ as identification.
My Commission Expires:
---------------------------------- /s/Xxxxxxxx X. Xxxxxx
---------------------------------------
[AFFIX XXXXXXXX X. XXXXXX (Signature)
NOTARY MY COMMISSION #CC 374628
SEAL] Expires: June 25, 1998 Xxxxxxxx X. Xxxxxx
Bonded Thru Notary Public Underwriters ---------------------------------------
(Printed Name)
---------------------------------------
(Title or Rank)
---------------------------------------
(Serial Number, if any)
-2-
29
EXHIBIT A TO ASSIGNMENT
-----------------------
LOAN DOCUMENTS
--------------
1. Substitute Renewal Mortgage No. 1, dated as of October 19, 1985,
executed by Borrowers in favor of Naples, and recorded in the Public
Records of Citrus County, Florida at O.R. Book 682, Page 2140, and in
the Public Records of Hernando County, Florida, at O.R. Book ---,
Page ----, as each of the same may have been amended from time to time.
2. Substitute Renewal Mortgage No. 2, dated as of October 19, 1985,
executed by Punta Gorda Isles, Inc., Punta Gorda Developers, Inc. and
Burnt Store Marina, Inc. in favor of The First National Bank of Chicago,
as Agent ("FNBC"), and recorded at O.R. Book 837, Page 959 of the
----
Public Records of Charlotte County, Florida, and recorded at O.R.
Book 682, Page 1952 of the Public Records of Citrus County, Florida,
which Substitute Renewal Mortgage No. 2 was assigned by FNBC to Naples
pursuant to: (i) that certain Assignment of Mortgage recorded at
O.R. Book 683, Page 187 of the Public Records of Citrus County, Florida,
(ii) that certain Assignment of Mortgages recorded at O.R. Book 683,
Page 190 of the Public Records of Citrus County, Florida and O.R.
Book 683, Page 195 of the Public Records of Citrus County, Florida,
as the same may have been amended from time to time.
3. Restated Loan Agreement No. 1, dated October 19, 1985, executed between
Naples and Borrowers as the same may have been amended from time to time.
4. Divided Security Agreement and Pledge of Collateral No. 1, dated
October 19, 1985, executed by Borrowers in favor of Naples, as the same
may have been amended from time to time.
5. Divided Assignment of Notes, Mortgages, Contracts and Agreements for Deed
No. 1 dated as of October 19, 1985, executed by Borrowers in favor of
Naples, as the same may have been amended from time to time.
6. Platinum Point Loan Documents, as described in that Thirteenth Mortgage
& Loan Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
7. Tugboat Loan Documents, as described in that Thirteenth Mortgage & Loan
Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
8. Loan and Security Agreement, dated October 1, 1984, executed by PGI, PGD,
Marina, FNBC, CREI or FNB, as agent ("Land Loan Agreement"), a portion of
-------------------
which Agreement was assigned by FNBC and CREI to Naples pursuant to a
Note Purchase
30
Agreement, dated October 19, 1985, as the same may have been amended from
time to time.
9. Loan and Security Agreement, dated as of October 1, 1984, executed among
PGI, PGD, Marina, FNBC, CREI and FNBC, as Agent, as the same may have
been modified from time to time ("FNBC Receivables Loan Agreement"),
-------------------------------
a portion of which Agreement was assigned by FNBC and CREI to Naples
pursuant to a Note Purchase Agreement, dated October 19, 1985, as the
same may have been amended from time to time.
10. Restated Loan and Security Agreement, dated as of March 25, 1987,
executed by and among Borrowers and Naples, as the same may have been
amended from time to time ["to be read in conjunction with Restated Loan
Agreement No. 1" - item 3 above]
11. Pledge Agreement, dated as of March 25, 1987, executed among Punta Gorda
Isles, Inc., Punta Gorda Developers, Inc. and Naples regarding stock
collateral, as the same may have been amended from time to time.
12. Security Agreement, dated March 25, 1987, executed among Borrowers and
Naples regarding blanket lien on all of Borrower's assets, as the same
may have been amended from time to time.
13. Together with Assignor's right, title and interest, if any, in any
additional security instruments securing the indebtedness under the
Consolidated Note and the Future Advance Note.
A-2
31
THIS CONSOLIDATED RENEWAL PROMISSORY NOTE CONSOLIDATES, RENEWS AND RESTATES ALL
PRIOR NOTES MADE BY, AND ALL EXISTING INDEBTEDNESS OF, MAKER IN FAVOR OF
HOLDER, INCLUDING THOSE CERTAIN PROMISSORY NOTES LISTED IN THE ATTACHED
SCHEDULE 1 ("PRIOR NOTES"). THIS CONSOLIDATED RENEWAL PROMISSORY NOTE DOES NOT
CONSTITUTE A NEW OBLIGATION TO PAY MONEY AND THE PRINCIPAL AMOUNT OF THIS
CONSOLIDATED RENEWAL PROMISSORY NOTE IS EQUAL TO THE OUTSTANDING PRINCIPAL
BALANCE UNDER THE PRIOR NOTES. FLORIDA INTANGIBLE PERSONAL PROPERTY TAXES AND
FLORIDA DOCUMENTARY STAMP TAXES DUE IN CONNECTION WITH THE PRIOR NOTES AND
THE INDEBTEDNESS EVIDENCED HEREBY WERE PAID UPON RECORDATION OF THE
INSTRUMENTS DESCRIBED IN THE ATTACHED SCHEDULE 2, AND THE AMENDMENTS THERETO.
ALL THE ORIGINALS OF PRIOR NOTES WHICH REMAIN IN HOLDER'S POSSESSION ARE
ATTACHED HERETO AND MARKED "PAID BY RENEWAL".
CONSOLIDATED RENEWAL PROMISSORY NOTE
------------------------------------
$7,001,615.29 St. Louis, Missouri
May 13, 1994
FOR VALUE RECEIVED, the undersigned, and if more than one, each of them
jointly and severally (hereinafter called "Maker") promises to pay to the order
of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association
(together with any subsequent holder of this Note, hereinafter called
"Holder") at its office in Orlando, Florida, or at such other place as Holder
may from time to time designate, the principal sum of SEVEN MILLION ONE
THOUSAND SIX HUNDRED FIFTEEN AND 29/100 DOLLARS ($7,001,615.29), with interest
thereon from the date hereof at an adjustable interest rate of Prime (as
defined below) plus one and one-half percent (1.5%) per annum. For purposes of
this Note, "Prime" shall mean that rate of interest published in the Wall
Street Journal from time to time as the "prime rate", it being agreed that
Prime is not necessarily the lowest or best rate at any time charged by Holder.
The foregoing interest and principal will be payable in full on June 1, 1997.
The amounts due or to become due under this Note shall be paid as follows:
(a) On November 16, 1995, Maker shall pay all accrued and
unpaid interest.
(b) Commencing on December 1, 1995 and continuing on the first day
of each and every month thereafter, Maker shall pay all accrued and unpaid
interest.
32
(c) The entire outstanding unpaid principal balance together with
all accrued and unpaid interest and all other sums due hereunder shall be due
and payable on June 1, 1997 ("Maturity Date").
If any payment is more than 10 days late, Maker shall pay Holder, without
notice or demand, a late charge equal to 5% of the payment. The foregoing
late charge is provided to compensate Holder for its expense in collecting and
administering delinquent payments and is not to be construed as interest.
After the maturity or due date of this Note, through acceleration or
otherwise, interest will accrue on the principal balance remaining unpaid at
the highest lawful rate until paid.
All payments hereunder will first be credited to interest and lawful
charges then accrued and the remainder to principal.
All interest on this Note will be computed on the basis of the actual
number of days elapsed in a 360-day year.
The indebtedness evidenced by this Note, and all other indebtedness of
Maker to Holder, however and whenever incurred or evidenced, whether primary,
secondary, direct, indirect, absolute, contingent, sole, joint, or several,
due 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 inter alia by the property
----------
encumbered by security instruments listed in Schedule 3 attached hereto and
hereby made a part hereof, including all proceeds thereof and rights in
connection therewith (which property, together with additions and
substitutions, is called the "Collateral"). Holder will have such rights
with respect to the Collateral as is authorized by law. The parties
expressly agree that all of the covenants, conditions, and agreements
contained in any mortgage securing this Note are hereby made a part of this
Note. If Maker has other loans with Holder, or if Maker takes out other loans
with Holder in the future, collateral securing those loans will also secure
this Note.
Maker, endorser, surety, guarantor, or other parties to this Note (all of
whom are hereinafter called "Obligor") jointly and severally agree as follows:
Additions to, releases, reductions, or exchanges of or substitutions for
the Collateral, payments on account of this loan or increases of the same, or
other loans made partially or wholly upon the Collateral, may from time to
time be made without affecting the provisions of this Note or the Liabilities
of any party hereto. If any of the Collateral is personal property, Holder
shall exercise reasonable care in the custody and preservation of the
Collateral in its possession, and will be deemed to have exercised
reasonable care if it takes such action for that purpose as Maker reasonably
requests in writing, but no omission to comply with any request of Maker will
of itself be deemed a failure to exercise reasonable care. Holder shall not be
bound to take any steps necessary to preserve any rights in the
33
Collateral against prior parties, and Maker shall take all necessary steps for
such purposes. Holder or its nominee need not collect interest on or principal
of any Collateral or give any notice with respect thereto.
If the Collateral at any time becomes unsatisfactory to Holder, or if
Holder at any time deems itself insecure, or upon default, Maker shall, at the
option of Holder and in addition to all other remedies available to Holder,
within one (1) day after demand, deposit with Holder as part of the Collateral
additional property which is satisfactory to Holder.
Obligor will be in default under this Note upon: (a) nonpayment of any
interest or principal under this Note when due; (b) failure of any Obligor to
perform any agreement under this Note or otherwise a part of this loan
transaction or to pay in full, when due, any liability whatsoever to Holder or
any installment thereof or interest thereon, or failure to pay when due any
premium upon any life insurance policy held as collateral hereunder; (c) the
death, dissolution, termination of existence, insolvency, or business failure
of any Obligor, appointment of a receiver of any part of the property of any
such party, assignment for the benefit of creditors by or the commencement of
any proceedings in bankruptcy or insolvency by or against any Obligor; (d) the
entry of a judgment against any Obligor; (e) the issuing of any attachment or
garnishment, or the filing of any lien, against any property of any obligor;
(f) the taking of possession of any substantial part of the property of any
Obligor at the instance of any governmental authority; (g) the merger,
consolidation, or reorganization of any Obligor; (h) the determination by Holder
that a material adverse change has occurred in the financial condition of any
Obligor from the condition set forth in the most recent financial statement of
such Obligor heretofore furnished to Holder or from the condition of such
Obligor as heretofore most recently disclosed to Holder in any manner;
(i) falsity in any material respect of, or any material omission in, any
representation or statement made to Holder by or on behalf of any Obligor in
connection with this Note; (j) the pledge, assignment, transfer, or granting
of a security interest by any Obligor of any equity in any of the Collateral
without the written consent of Holder.
Holder will have all of the rights and remedies of a creditor, mortgagee,
and secured party under all applicable law. Without limiting the generality of
the foregoing, if Holder deems itself insecure or upon the occurrence of any
default under this Note, Holder may at its option and without notice or demand:
(1) declare the entire unpaid principal and accrued interest accelerated and
due and payable at once, together with any and all other liabilities of any
Obligor or any of such liabilities selected by Holder; and (2) set off against
this Note all money owed by Holder in any capacity to each or any Obligor
whether or not due and also set off against all other liabilities of each
Obligor to Holder all money owed by Holder in any capacity to any Obligor, and
Holder will be deemed to have exercised such right of setoff and to have made
a charge against any such money immediately upon the occurrence of such
default although made or entered on the books subsequent thereto. To the
extent that any of the Collateral is personal property and the Holder elects
to proceed with respect to it in accordance with the Uniform Commercial Code,
then unless that Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized
-3-
34
market, Holder shall give Maker reasonable notice of the time and place of any
public or private sale thereof. The requirement of reasonable notice will be
met if such notice is mailed, postage prepaid, to any Obligor at the address
given below or at any other address shown on the records of Holder at least
five days before the time of sale. Upon disposition of any Collateral after
the occurrence of any default hereunder, Maker will be and will remain liable
for any deficiency; and Holder shall account to Maker for any surplus, but
Holder shall have the right to apply all or part of such surplus (or to hold
the same as a reserve) against any and all other Liabilities of each or any
Obligor to Holder.
Holder may, at any time whether or not this Note is due: (i) pledge or
transfer this Note and its interest in the Collateral, whereupon Holder will be
relieved of all duties and responsibilities hereunder and relieved from any and
all liability with respect to any Collateral so pledged or transferred, and
pledgee or transferee will for all purposes stand in the place of Holder
hereunder and have all the rights of Holder hereunder; (ii) transfer the whole
or any part of the Collateral into the name of itself or its nominee; (iii)
vote the Collateral; (iv) notify the Obligor on any Collateral to make payment
to Holder of any amounts due or to become due thereon; (v) demand, xxx
for, collect, or make any compromise or settlement it deems desirable with
reference to the Collateral; (vi) take possession or control of any proceeds
of the Collateral; and (vii) exercise all other rights necessary or
required, in Holder's discretion, in order to protect its interests under this
Note.
In no event xxxx Xxxxxx be entitled to unearned or unaccrued interest or
other charges or rebates, except as may be authorized by law; nor will any
such party be entitled or receive at any time any such charges not allowed or
permitted by law, or any interest in excess of the highest lawful rate. Any
payments of interest in excess of the highest lawful rate will be credited by
Holder on interest accrued or principal or both; except that Maker will have
an option to demand refund as to any such interest or charges in excess of the
highest lawful rate.
No delay or omission on the part of Holder in exercising any right
hereunder will operate as a waiver of such right or of any other rights under
this Note. Presentment, demand, protest, notice of dishonor, and all other
notices are hereby waived by each and every Obligor. Obligor, jointly and
severally, promises and agrees to pay all costs of collection and reasonable
attorney's fees, including reasonable attorney's fees of any suit, out of
court, in trial, on appeal, in bankruptcy proceedings or otherwise, incurred
or paid by Holder in enforcing this Note or preserving any right or interest
of Holder hereunder. All notices given in connection with this Note must be
sent by certified mail, return receipt requested, and will be deemed given
three days after mailing or upon actual receipt, whichever is sooner. Any
notice to Maker shall be addressed x/x XXX Xxxxxxxxxxxx, Xxxxx 0000,
000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, Attention Xxxxxxxx X. Xxxxxxxx or to
any other address shown on Holder's records.
Each Obligor hereby expressly consents to any and all extensions,
modifications, and renewals, in whole or in part, including but not limited to
changes in payment schedules and
-4-
35
interest rates, and all delays in time of payment or other performance which
Holder may grant or permit at any time and from time to time without
limitation and without any notice to or further consent of any Obligor. Each
Obligor will also be bound by each of the foregoing terms, without the
requirement that Holder first go against any security interest otherwise held
by Holder.
Each Obligor hereby expressly agrees to indemnify and hold Holder harmless
against any and all Florida documentary stamp taxes and/or intangible personal
property taxes which may be deemed to be due and payable in respect of this
Note, the indebtedness evidenced thereby and any instrument securing any
indebtedness evidenced thereby.
WAIVER OF JURY TRIAL. OBLIGOR AND HOLDER (BY ITS ACCEPTANCE OF THIS
--------------------
NOTE) HEREBY AGREE AS FOLLOWS: (A) EACH OF THEM KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION (AN "ACTION")
BASED UPON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY
RELATED DOCUMENTS, INSTRUMENTS, OR AGREEMENTS (WHETHER ORAL OR WRITTEN AND
WHETHER EXPRESS OR IMPLIED AS A RESULT OF A COURSE OF DEALING, A COURSE OF
CONDUCT, A STATEMENT, OR OTHER ACTION OF EITHER PARTY); (B) NEITHER OF THEM
MAY SEEK A TRIAL BY JURY IN ANY SUCH ACTION; (C) NEITHER OF THEM WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION (IN WHICH A JURY TRIAL HAS BEEN WAIVED) WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND (D)
NEITHER OF THEM HAS IN ANY WAY AGREED WITH OR REPRESENTED TO THE OTHER OF THEM
THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
MAKERS:
PGI INCORPORATED, formerly known
as PUNTA GORDA ISLES, INC., a
Florida corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
-5-
36
SUGARMILL XXXXX, INC., a Florida
corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
BURNT STORE MARINA, INC., a
Florida corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
GULF COAST CREDIT
CORPORATION, a Florida corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
The Address for all of the Makers is:
c/o PGI, Incorporated
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
-6-
37
SCHEDULE 1
----------
EXISTING NOTES
1. That certain Consolidating Substitute Renewal Note dated as of March 25,
1987, executed by the Borrowers in favor of Naples Federal Savings and
Loan Association, predecessor in interest to BancFlorida, a Federal
Savings Bank, predecessor in interest by merger to Lender ("Naples"),
in the original principal amount of $3,837,967.15, as the same may have
been amended from time to time ("Receivables Consolidated Note");
2. That certain restated Consolidating Substitute Renewal Note dated as of
March 25, 1987, executed by the Borrowers in favor of Naples, in the
original principal amount of $19,383,437.26, as the same may have been
amended from time to time ("Land Loan Note No. 1");
3. That certain Future Advance Note, dated as of March 25, 1987, executed
by the Borrowers in favor of Naples, in the original principal amount of
$6,223,518.81, as the same may have been amended from time to time
("Land Loan Note No. 2");
4. That certain Future Advance Mortgage Note dated as of May 20, 1988,
executed by the Borrowers in favor of Naples, in the original principal
amount of $1,300,000.00, as the same may have been amended from time to
time ("Land Loan Note No. 3");
5. That certain Future Advance Mortgage Note dated as of May 20, 1988,
executed by the Borrowers in favor of Naples, in the original principal
amount of $541,653.03, as the same may have been amended from time to
time ("Land Loan Note No. 4");
6. That certain Future Advance Mortgage Note dated as of May 30, 1989,
executed by the Borrowers in favor of Naples, in the original principal
amount of $453,551.34, as the same may have been amended from time to
time ("Land Loan Note No. 5");
7. That certain Future Advance Mortgage Note dated as of June 1, 1990,
executed by the Borrowers in favor of Naples, in the original principal
amount of $426,025.04, as the same may have been amended from time to
time ("Land Loan Note No. 6"); and
8. That certain Future Advance Mortgage Note dated as of July 8, 1992,
executed by the Borrowers in favor of Naples, in the original principal
amount of $415,000.00, as the same may have been amended from time to
time ("Land Loan Note No. 7");
38
SCHEDULE 2
----------
INSTRUMENTS UPON WHICH DOCUMENTARY STAMP AND
NON-RECURRING INTANGIBLE PERSONAL PROPERTY TAXES WERE PAID
1. Mortgage, Assignment of Rents and Security Agreement, dated December 31,
1984, executed by Borrowers in favor of Naples, and recorded at O.R. Book
800, Page 1056 of the Public Records of Charlotte County, Florida, and
recorded at O.R. Book 659, Page 146 of the Public Records of Citrus
County, Florida, and recorded at O.R. Book 208, Page 840 of the Public
Records of DeSoto County, Florida, and recorded at O.R. Book 1761,
Page 3257 of the Public Records of Xxx County, Florida.
2. First Modification of Mortgage, dated May 31, 1985, executed by
Borrowers in favor of Naples, and recorded at O.R. Book 818, Page 1995
of the Public Records of Charlotte County, Florida, and recorded at
O.R. Book 670, Page 2143 of the Public Records of Citrus County, Florida,
and recorded at O.R. Book 213, Page 165 of the Public Records of DeSoto
County, Florida, and recorded at O.R. Book 580, Page 1255 of the Public
Records of Hernando County, Florida and recorded at O.R. Book 1786,
Page 4571 of the Public Records of Xxx County, Florida.
3. Second Modification of Mortgage, dated August 26, 1985, executed by
Borrowers, in favor of Naples, and recorded at O.R. Book 830, Page 97 of
the Public Records of Charlotte County, Florida, and recorded at
O.R. Book 678, Page 751 of the Public Records of Citrus County, Florida,
and recorded at O.R. Book 215, Page 756 of the Public Records of DeSoto
County, Florida, and recorded at O.R. Book 590, Page 24 in the Public
Records of Hernando County, Florida, and recorded at O.R. Book 851,
Page 381 of the Public Records of Highlands County, Florida, and recorded
at O.R. Book 1801, Page 945 of the Public Records of Xxx County, Florida.
4. Third Modification of Mortgage, dated September 9, 1985, executed by
Borrowers, in favor of Naples, and recorded at O.R. Book 832, Page 500 of
the Public Records of Charlotte County, Florida, and recorded at O.R.
Book 680, Page 30 of the Public Records of Citrus County, Florida, and
recorded at O.R. Book 216, Page 221 of the Public Records of DeSoto
County, Florida, and recorded at O.R. Book 590, Page 55 of the Public
Records of Hernando County, Florida, and recorded at O.R. Book 1804,
Page 3588 of the Public Records of Xxx County, Florida.
5. Fourth Modification of Mortgage, dated September 26, 1985, executed by
Borrowers, in favor of Naples, and recorded at O.R. Book 834, Page 734
of the Public Records of Charlotte County, Florida, and recorded at
O.R. Book ---, Page --- of the Public Records of Citrus County, Florida,
and recorded at O.R. Book 216, Page 810 of the Public Records of DeSoto
County, Florida, and recorded at O.R. Book 590,
39
Page 1885 of the Public Records of Hernando County, Florida, and
recorded at O.R. Book 1808, Page 1616 of the Public Records of
Xxx County, Florida.
6. Notice of Future Advance and Receipt dated March 25, 1987 and recorded
in O.R. Book 734, Page 1152, Public Records of Citrus County, Florida,
and O.R. Book 645, Page 130, Public Records of Hernando County, Florida.
7. Notice of Future Advance and Receipt dated May 20, 1988 and recorded in
O.R. Book 782, Page 781, Public Records of Citrus County, Florida.
8. Notice of Future Advance and Receipt dated May 20, 1988 and recorded in
O.R. Book 782, Page 785, Public Records of Citrus County, Florida.
9. Notice of Future Advance and Receipt dated May 30, 1989 and recorded in
O.R. Book 822, Page 1620, Public Records of Citrus County, Florida, and
O.R. Book 741, Page 1384, Public Records of Hernando County, Florida.
10. Notice of Future Advance dated June 1, 1990 and recorded in O.R. Book 864,
Page 2107, Public Records of Citrus County, Florida, and O.R. Book 788,
Page 708, Public Records of Hernando County, Florida.
11. Twelfth Mortgage and Loan Modification Agreement and Notice of Future
Advance and Receipt, dated July 8, 1992, executed by BancFlorida, a
Federal Savings Bank, predecessor in interest by merger to Lender, and
the Borrowers, and recorded at O.R. Book 944, Page 1564 of the Public
Records of Citrus County, Florida, and recorded at O.R. Book 872, Page
517 of the Public Records of Hernando County, Florida.
12. Any other instruments upon which additional advances were made and/or
additional taxes were paid.
40
SCHEDULE 3
----------
SCHEDULE OF SECURITY INSTRUMENTS
1. Substitute Renewal Mortgage No. 1, dated as of October 19, 1985,
executed by Borrowers in favor of Naples, and recorded in the Public
Records of Charlotte, Citrus, DeSoto, Hernando and Xxx Counties, Florida,
as the same may have been amended from time to time.
2. Substitute Renewal Mortgage No. 2, dated as of October 19, 1985,
executed by Punta Gorda Isles, Inc., Punta Gorda Developers, Inc. and
Burnt Store Marina, Inc. in favor of The First National Bank of Chicago,
as Agent ("FNBC"), and recorded at O.R. Book 837, Page 959 of the
Public Records of Charlotte County, Florida, and recorded at O.R.
Book 682, Page 1952 of the Public Records of Citrus County, Florida,
which Substitute Renewal Mortgage No. 2 was assigned by FNBC to Naples
pursuant to: (i) that certain Assignment of Mortgage recorded at
O.R. Book 683, Page 187 of the Public Records of Citrus County, Florida,
(ii) that certain Assignment of Mortgages recorded at O.R. Book 683,
Page 190 of the Public Records of Citrus County, Florida and O.R.
Book 683, Page 195 of the Public Records of Citrus County, Florida,
as the same may have been amended from time to time.
3. Restated Loan Agreement No. 1, dated October 19, 1985, executed between
Naples and Borrowers as the same may have been amended from time to time.
4. Divided Security Agreement and Pledge of Collateral No. 1, dated
October 19, 1985, executed by Borrowers in favor of Naples, as the same
may have been amended from time to time.
5. Divided Assignment of Notes, Mortgages, Contracts and Agreements for Deed
No. 1 dated as of October 19, 1985, executed by Borrowers in favor of
Naples, as the same may have been amended from time to time.
6. Platinum Point Loan Documents, as described in that Thirteenth Mortgage
& Loan Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
7. Tugboat Loan Documents, as described in that Thirteenth Mortgage & Loan
Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
8. Loan and Security Agreement, dated October 1, 1984, executed by PGI, PGD,
Marina, FNBC, CREI or FNB, as agent ("Land Loan Agreement"), a portion of
41
which Agreement was assigned by FNBC and CREI to Naples pursuant to a
Note Purchase Agreement, dated October 19, 1985, as the same may have
been amended from time to time.
9. Loan and Security Agreement, dated as of October 1, 1984, executed among
PGI, PGD, Marina, FNBC, CREI and FNBC, as Agent, as the same may have
been modified from time to time ("FNBC Receivables Loan Agreement"),
a portion of which Agreement was assigned by FNBC and CREI to Naples
pursuant to a Note Purchase Agreement, dated October 19, 1985, as the
same may have been amended from time to time.
10. Restated Loan and Security Agreement, dated as of March 25, 1987,
executed by and among Borrowers and Naples, as the same may have been
amended from time to time ["to be read in conjunction with Restated Loan
Agreement No. 1" - item 3 above]
11. Pledge Agreement, dated as of March 25, 1987, executed among Punta Gorda
Isles, Inc., Punta Gorda Developers, Inc. and Naples regarding stock
collateral, as the same may have been amended from time to time.
12. Security Agreement, dated March 25, 1987, executed among Borrowers and
Naples regarding blanket lien on all of Borrower's assets, as the same
may have been amended from time to time.
13. Together with Assignor's right, title and interest, if any, in any
additional security instruments securing the indebtedness under this
Consolidated Note and the Future Advance Note.
42
ENDORSEMENT OF THAT CERTAIN CONSOLIDATED
RENEWAL PROMISSORY NOTE DATED MAY 13, 1994
IN THE ORIGINAL PRINCIPAL AMOUNT OF $7,001,615.29
Pay to the order of PGIP L.L.C., a Missouri limited liability company
("PGIP") pursuant to that certain Note and Loan Document Purchase Agreement
dated as of October 12, 1995, by and between First Union National Bank of
Florida, a national banking association, PGIP, PGI Incorporated, a Florida
corporation, Sugarmill Xxxxx, Inc., a Florida corporation, Burnt Store Marina,
Inc., a Florida corporation, and Gulf Coast Credit Corporation, a Florida
corporation, as amended by that certain Modification of Note and Loan
Document Purchase Agreement dated even date herewith (as amended, "Note and
Loan Document Purchase Agreement"), without recourse, representation, warranty
or obligation except as set forth in paragraph 9 "Representations and
Warranties of Seller" of the Note and Loan Document Purchase Agreement.
FIRST UNION NATIONAL BANK OF FLORIDA,
a national banking association
By: /s/ Xxxxxx X. Xxxxx III
------------------------------------
Name: Xxxxxx X. Xxxxx III
-------------------------------
Title: Asst. Vice Pres.
------------------------------
Dated: March 28, 1996
43
ENDORSEMENT OF THAT CERTAIN CONSOLIDATED
RENEWAL PROMISSORY NOTE DATED MAY 13, 1994
IN THE ORIGINAL PRINCIPAL AMOUNT OF $7,001,615.29
Pay to the order of First Union National Bank of Florida, a national banking
association ("First Union") pursuant to that certain Collateral Assignment of
Notes, Mortgages and Other Loan Documents dated even date herewith executed by
PGIP L.L.C., a Missouri limited liability company ("PGIP") in favor of
First Union ("Collateral Assignment"), without recourse, representation,
warranty or obligation except as set forth in the Collateral Assignment.
PGIP L.L.C., a Missouri limited liability company
By: /s/ Xxxxxx X. Love Jr.
------------------------------------
Name: Xxxxxx X. Love Jr.
-------------------------------
Title: Manager
------------------------------
Date: March 28, 1996
44
FLORIDA DOCUMENTARY STAMP TAXES HAVE BEEN PAID AND THE PROPER
DOCUMENTARY STAMPS ARE AFFIXED TO THE COUNTERPART NOTICE OF FUTURE
ADVANCE RECORDED IN CITRUS COUNTY, FLORIDA, ON OR ABOUT THE DATE HEREOF.
FUTURE ADVANCE NOTE
-------------------
$241,617.65 St. Louis, Missouri
October 12, 1995
FOR VALUE RECEIVED, the undersigned, and if more than one, each of them
jointly and severally (hereinafter called "Maker") promises to pay to the
order of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association
(together with any subsequent holder of this Note, hereinafter called
"Holder") at its office in Orlando, Florida, or at such other place as Holder
may from time to time designate, the principal sum of Two Hundred and
Forty-One Thousand Six Hundred Seventeen and 65/100 ($241,617.65) with
interest thereon from the date hereof at an adjustable interest rate of Prime
(as defined below) plus one and one-half percent (1.5%) per annum. For
purposes of this Note, "Prime" shall mean that rate of interest published in
the Wall Street Journal from time to time as the "prime rate", it being agreed
that Prime is not necessarily the lowest or best rate at any time charged by
Holder. The foregoing interest and principal will be payable in full on
November 16, 1995.
If any payment is more than 10 days late, Maker shall pay Holder, without
notice of demand, a late charge equal to 5% of the payment. The foregoing late
charge is provided to compensate Holder for its expense in collecting and
administering delinquent payments and is not to be construed as interest.
After the maturity or due date of this Note, through acceleration or
otherwise, interest will accrue on the principal balance remaining unpaid at
the highest lawful rate until paid.
All payments hereunder will first be credited to interest and lawful
charges then accrued and the remainder to principal.
All interest on this Note will be computed on the basis of the actual
number of days elapsed in a 360-day year.
The indebtedness evidenced by this Note, and all other indebtedness of
Maker to Holder, however and whenever incurred or evidenced, whether primary,
secondary, direct,
45
indirect, absolute, contingent, sole, joint, or several, due 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 inter alia by the property encumbered by
----------
security instruments listed in Schedule 1 attached hereto and hereby made a
part hereof, including all proceeds thereof and rights in connection therewith
(which property, together with additions and substitutions, is called the
"Collateral"). Holder will have such rights with respect to the Collateral as
is authorized by law. The parties expressly agree that all of the covenants,
conditions, and agreements contained in any mortgage securing this Note are
hereby made a part of this Note. If Maker has other loans with Holder, or if
Maker takes out other loans with Holder in the future, collateral securing
those loans will also secure this Note.
Maker, endorser, surety, guarantor, or other parties to this Note (all of
whom are hereinafter called "Obligor") jointly and severally agree as follows:
Additions to, releases, reductions, or exchanges of or substitutions for
the Collateral, payments on account of this loan or increases of the same, or
other loans made partially or wholly upon the Collateral, may from time to
time be made without affecting the provisions of this Note or the Liabilities
of any party hereto. If any of the Collateral is personal property, Holder
shall exercise reasonable care in the custody and preservation of the
Collateral in its possession, and will be deemed to have exercised
reasonable care if it takes such action for that purpose as Maker reasonably
requests in writing, but no omission to comply with any request of Maker will
of itself be deemed a failure to exercise reasonable care. Holder shall not be
bound to take any steps necessary to preserve any rights in the Collateral
against prior parties, and Maker shall take all necessary steps for such
purposes. Holder or its nominee need not collect interest on or principal of
any Collateral or give any notice with respect thereto.
If the Collateral at any time becomes unsatisfactory to Holder, or if
Holder at any time deems itself insecure, or upon default, Maker shall, at the
option of Holder and in addition to all other remedies available to Holder,
within one (1) day after demand, deposit with Holder as part of the Collateral
additional property which is satisfactory to Holder.
Obligor will be in default under this Note upon: (a) nonpayment of any
interest or principal under this Note when due; (b) failure of any Obligor to
perform any agreement under this Note or otherwise a part of this loan
transaction or to pay in full, when due, any liability whatsoever to Holder or
any installment thereof or interest thereon, or failure to pay when due any
premium upon any life insurance policy held as collateral hereunder; (c) the
death, dissolution, termination of existence, insolvency, or business failure
of any Obligor, appointment of a receiver of any part of the property of any
such party, assignment for the benefit of creditors by or the commencement of
any proceedings in bankruptcy or insolvency by or against any Obligor; (d) the
entry of a judgment against any Obligor; (e) the issuing of any attachment or
garnishment, or the filing of any lien, against any property of any obligor;
(f) the taking of possession of any substantial part of the property of any
Obligor at the
-2-
46
instance of any governmental authority; (g) the merger, consolidation, or
reorganization of any Obligor; (h) the determination by Holder that a material
adverse change has occurred in the financial condition of any Obligor from the
condition set forth in the most recent financial statement of such Obligor
heretofore furnished to Holder or from the condition of such Obligor as
heretofore most recently disclosed to Holder in any manner; (i) falsity in any
material respect of, or any material omission in, any representation or
statement made to Holder by or on behalf of any Obligor in connection with
this Note; (j) the pledge, assignment, transfer, or granting of a security
interest by any Obligor of any equity in any of the Collateral without the
written consent of Holder.
Holder will have all of the rights and remedies of a creditor, mortgagee,
and secured party under all applicable law. Without limiting the generality of
the foregoing, if Holder deems itself insecure or upon the occurrence of any
default under this Note, Holder may at its option and without notice or demand:
(1) declare the entire unpaid principal and accrued interest accelerated and
due and payable at once, together with any and all other liabilities of any
Obligor or any of such liabilities selected by Holder; and (2) set off against
this Note all money owed by Holder in any capacity to each or any Obligor
whether or not due and also set off against all other liabilities of each
Obligor to Holder all money owed by Holder in any capacity to any Obligor, and
Holder will be deemed to have exercised such right of setoff and to have made
a charge against any such money immediately upon the occurrence of such
default although made or entered on the books subsequent thereto. To the
extent that any of the Collateral is personal property and the Holder elects
to proceed with respect to it in accordance with the Uniform Commercial Code,
then unless that Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Holder shall
give Maker reasonable notice of the time and place of any public or private
sale thereof. The requirement of reasonable notice will be met if such notice
is mailed, postage prepaid, to any Obligor at the address given below or at
any other address shown on the records of Holder at least five days before the
time of sale. Upon disposition of any Collateral after the occurrence of any
default hereunder, Maker will be and will remain liable for any deficiency;
and Holder shall account to Maker for any surplus, but Holder shall have the
right to apply all or part of such surplus (or to hold the same as a reserve)
against any and all other Liabilities of each or any Obligor to Holder.
Holder may, at any time whether or not this Note is due: (i) pledge or
transfer this Note and its interest in the Collateral, whereupon Holder will be
relieved of all duties and responsibilities hereunder and relieved from any and
all liability with respect to any Collateral so pledged or transferred, and
pledgee or transferee will for all purposes stand in the place of Holder
hereunder and have all the rights of Holder hereunder; (ii) transfer the whole
or any part of the Collateral into the name of itself or its nominee; (iii)
vote the Collateral; (iv) notify the Obligor on any Collateral to make payment
to Holder of any amounts due or to become due thereon; (v) demand, xxx
for, collect, or make any compromise or settlement it deems desirable with
reference to the Collateral; (vi) take possession or control of any proceeds
of the Collateral; and (vii) exercise all other rights necessary or required,
in Holder's discretion, in order to protect its interests under this Note.
-3-
47
In no event xxxx Xxxxxx be entitled to unearned or unaccrued interest or
other charges or rebates, except as may be authorized by law; nor will any
such party be entitled or receive at any time any such charges not allowed or
permitted by law, or any interest in excess of the highest lawful rate. Any
payments of interest in excess of the highest lawful rate will be credited by
Holder on interest accrued or principal or both; except that Maker will have
an option to demand refund as to any such interest or charges in excess of the
highest lawful rate.
No delay or omission on the part of Holder in exercising any right
hereunder will operate as a waiver of such right or of any other rights under
this Note. Presentment, demand, protest, notice of dishonor, and all other
notices are hereby waived by each and every Obligor. Obligor, jointly and
severally, promises and agrees to pay all costs of collection and reasonable
attorney's fees, including reasonable attorney's fees of any suit, out of
court, in trial, on appeal, in bankruptcy proceedings or otherwise, incurred
or paid by Holder in enforcing this Note or preserving any right or interest
of Holder hereunder. All notices given in connection with this Note must be
sent by certified mail, return receipt requested, and will be deemed given
three days after mailing or upon actual receipt, whichever is sooner. Any
notice to Maker shall be addressed x/x XXX Xxxxxxxxxxxx, Xxxxx 0000,
000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, Attention Xxxxxxxx X. Xxxxxxxx or to
any other address shown on Holder's records.
Each Obligor hereby expressly consents to any and all extensions,
modifications, and renewals, in whole or in part, including but not limited to
changes in payment schedules and interest rates, and all delays in time of
payment or other performance which Holder may grant or permit at any time and
from time to time without limitation and without any notice to or further
consent of any Obligor. Each Obligor will also be bound by each of the
foregoing terms, without the requirement that Holder first go against any
security interest otherwise held by Holder.
Each Obligor hereby expressly agrees to indemnify and hold Holder harmless
against any and all Florida documentary stamp taxes and/or intangible personal
property taxes which may be deemed to be due and payable in respect of this
Note, the indebtedness evidenced thereby and any instrument securing any
indebtedness evidenced thereby.
WAIVER OF JURY TRIAL. OBLIGOR AND HOLDER (BY ITS ACCEPTANCE OF THIS
--------------------
NOTE) HEREBY AGREE AS FOLLOWS: (A) EACH OF THEM KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION (AN "ACTION")
BASED UPON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY
RELATED DOCUMENTS, INSTRUMENTS, OR AGREEMENTS (WHETHER ORAL OR WRITTEN AND
WHETHER EXPRESS OR IMPLIED AS A RESULT OF A COURSE OF DEALING, A COURSE OF
CONDUCT, A STATEMENT, OR OTHER ACTION OF EITHER PARTY); (B) NEITHER OF THEM
MAY SEEK A TRIAL BY JURY IN ANY
-4-
48
SUCH ACTION; (C) NEITHER OF THEM WILL SEEK TO CONSOLIDATE ANY SUCH ACTION (IN
WHICH A JURY TRIAL HAS BEEN WAIVED) WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED; AND (D) NEITHER OF THEM HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO THE OTHER OF THEM THAT THE PROVISIONS OF THIS
SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
BORROWERS:
PGI INCORPORATED, formerly known
as PUNTA GORDA ISLES, INC., a
Florida corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
SUGARMILL XXXXX, INC., a Florida
corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
BURNT STORE MARINA, INC., a
Florida corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
GULF COAST CREDIT
CORPORATION, a Florida corporation
/s/ Xxxxxx X. Love Jr.
-------------------------------------
Chairman
The Address for all of the Borrowers is:
-5-
49
c/o PGI, Incorporated
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
-6-
50
SCHEDULE 1
----------
SCHEDULE OF SECURITY INSTRUMENTS
1. Substitute Renewal Mortgage No. 1, dated as of October 19, 1985,
executed by Borrowers in favor of Naples Federal Savings and Loan
Association predecessors in interest to BancFlorida, a Federal Savings
Bank predecessors by merger and Lender ("Naples"), and recorded in the
Public Records of Charlotte, Citrus, DeSoto, Hernando and Xxx Counties,
Florida, as the same may have been amended from time to time.
2. Substitute Renewal Mortgage No. 2, dated as of October 19, 1985,
executed by Punta Gorda Isles, Inc., Punta Gorda Developers, Inc. and
Burnt Store Marina, Inc. in favor of The First National Bank of Chicago,
as Agent ("FNBC"), and recorded at O.R. Book 837, Page 959 of the
Public Records of Charlotte County, Florida, and recorded at O.R.
Book 682, Page 1952 of the Public Records of Citrus County, Florida,
which Substitute Renewal Mortgage No. 2 was assigned by FNBC to Naples
pursuant to: (i) that certain Assignment of Mortgage recorded at
O.R. Book 683, Page 187 of the Public Records of Citrus County, Florida,
(ii) that certain Assignment of Mortgages recorded at O.R. Book 683,
Page 190 of the Public Records of Citrus County, Florida and O.R.
Book 683, Page 195 of the Public Records of Citrus County, Florida,
as the same may have been amended from time to time.
3. Restated Loan Agreement No. 1, dated October 19, 1985, executed between
Naples and Borrowers as the same may have been amended from time to time.
4. Divided Security Agreement and Pledge of Collateral No. 1, dated
October 19, 1985, executed by Borrowers in favor of Naples, as the same
may have been amended from time to time.
5. Divided Assignment of Notes, Mortgages, Contracts and Agreements for Deed
No. 1 dated as of October 19, 1985, executed by Borrowers in favor of
Naples, as the same may have been amended from time to time.
6. Platinum Point Loan Documents, as described in that Thirteenth Mortgage
& Loan Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
7. Tugboat Loan Documents, as described in that Thirteenth Mortgage & Loan
Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor
in interest by merger to Lender.
-7-
51
8. Loan and Security Agreement, dated October 1, 1984, executed by PGI, PGD,
Marina, FNBC, CREI or FNB, as agent ("Land Loan Agreement"), a portion of
which Agreement was assigned by FNBC and CREI to Naples pursuant to a
Note Purchase Agreement, dated October 19, 1985, as the same may have
been amended from time to time.
9. Loan and Security Agreement, dated as of October 1, 1984, executed among
PGI, PGD, Marina, FNBC, CREI and FNBC, as Agent, as the same may have
been modified from time to time ("FNBC Receivables Loan Agreement"),
a portion of which Agreement was assigned by FNBC and CREI to Naples
pursuant to a Note Purchase Agreement, dated October 19, 1985, as the
same may have been amended from time to time.
10. Restated Loan and Security Agreement, dated as of March 25, 1987,
executed by and among Borrowers and Naples, as the same may have been
amended from time to time ["to be read in conjunction with Restated Loan
Agreement No. 1" - item 3 above]
11. Pledge Agreement, dated as of March 25, 1987, executed among Punta Gorda
Isles, Inc., Punta Gorda Developers, Inc. and Naples regarding stock
collateral, as the same may have been amended from time to time.
12. Security Agreement, dated March 25, 1987, executed among Borrowers and
Naples regarding blanket lien on all of Borrower's assets, as the same
may have been amended from time to time.
13. Together with Assignor's right, title and interest, if any, in any
additional security instruments securing the indebtedness under this
Consolidated Renewal Promissory Note.
-8-
52
ENDORSEMENT OF THAT CERTAIN
FUTURE ADVANCE NOTE DATED MAY 13, 1994
IN THE ORIGINAL PRINCIPAL AMOUNT OF $241,617.65
Pay to the order of PGIP L.L.C., a Missouri limited liability company
("PGIP") pursuant to that certain Note and Loan Document Purchase Agreement
dated as of October 12, 1995, by and between First Union National Bank of
Florida, a national banking association, PGIP, PGI Incorporated, a Florida
corporation, Sugarmill Xxxxx, Inc., a Florida corporation, Burnt Store Marina,
Inc., a Florida corporation, and Gulf Coast Credit Corporation, as amended by
that certain Modification of Note and Loan Document Purchase Agreement dated
even date herewith (as amended, "Note and Loan Document Purchase Agreement"),
without recourse, representation, warranty or obligation except as set forth
in paragraph 9 "Representations and Warranties of Seller" of the Note and Loan
Document Purchase Agreement.
FIRST UNION NATIONAL BANK OF FLORIDA
By: /s/ Xxxxxx X. Xxxxx III
------------------------------------
Name: Xxxxxx X. Xxxxx III
-------------------------------
Title: Asst. Vice Pres.
------------------------------
Date: March 28, 1996
53
ENDORSEMENT OF THAT CERTAIN
FUTURE ADVANCE NOTE DATED MAY 13, 1994
IN THE ORIGINAL PRINCIPAL AMOUNT OF $241,617.65
Pay to the order of First Union National Bank of Florida, a national banking
association ("First Union") pursuant to that certain Collateral Assignment of
Notes, Mortgages and Other Loan Documents dated even date herewith executed by
PGIP L.L.C., a Missouri limited liability company ("PGIP") in favor of
First Union ("Collateral Assignment"), without recourse, representation,
warranty or obligation except as set forth in the Collateral Assignment.
PGIP L.L.C., a Missouri limited liability company
By: /s/ Xxxxxx X. Love Jr.
------------------------------------
Name: Xxxxxx X. Love Jr.
-------------------------------
Title: Manager
------------------------------
Date: March 28, 1996
54
ALL DOCUMENTARY STAMP TAXES DUE IN CONNECTION WITH THIS PROMISSORY NOTE HAVE
BEEN PAID AND THE PROPER DOCUMENTARY STAMPS ARE AFFIXED TO THE COLLATERAL
ASSIGNMENT OF NOTES, MORTGAGES AND OTHER LOAN DOCUMENTS WHICH SECURES THIS
PROMISSORY NOTE, AND WHICH IS RECORDED OR SHALL BE RECORDED IN THE PUBLIC
RECORDS OF CITRUS COUNTY, FLORIDA, AND CANCELLED.
PROMISSORY NOTE
---------------
$2,988,001.65 St. Louis, Missouri
March 28, 1996
FOR VALUE RECEIVED, the undersigned, and if more than one, each of them
jointly and severally (hereinafter called "Maker") promises to pay to the
order of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association
(together with any subsequent holder of this Note, hereinafter called
"Holder") at its office in Orlando, Florida, or at such other place as Holder
may from time to time designate, the principal sum of TWO MILLION NINE
HUNDRED EIGHTY EIGHT THOUSAND ONE AND 65/100 DOLLARS ($2,988,001.65), with
interest thereon from the date hereof at an adjustable interest rate of Prime
(as defined below) plus one percent (1.0%) per annum. For purposes of this
Note, "Prime" shall mean that rate of interest published in the Wall Street
Journal from time to time as the "prime rate", it being agreed that Prime is
not necessarily the lowest or best rate at any time charged by Holder. The
foregoing interest and principal will be payable in full on June 1, 1997.
The amounts due or to become due under this Note shall be paid as
follows:
a. Commencing on May 1, 1996, and continuing on the first day of
each and every month thereafter, Maker shall pay all accrued and unpaid
interest, it being agreed that interest shall not begin accruing until
April 1, 1996.
b. A principal payment in the amount of $240,000.00 shall be due
and payable on June 30, 1996.
c. The entire outstanding unpaid principal balance together with
all accrued and unpaid interest and all other sums due hereunder shall be due
and payable on June 1, 1997 ("Maturity Date").
If any payment is more than 10 days late, Maker shall pay Holder,
without notice or demand, a late charge equal to 5% of the payment. The
foregoing late charge is provided to compensate Holder for its expense in
collecting and administering delinquent payments and is not to be construed
as interest.
55
After the maturity or due date of this Note, through acceleration or
otherwise, at the election of Holder, interest will accrue on the principal
balance remaining unpaid at the lesser of (i) Prime plus three percent
(3.0%) per annum, or (ii) the highest lawful rate.
All payments hereunder will first be credited to interest and lawful
charges then accrued and the remainder to principal.
All interest on this Note will be computed on the basis of the actual
number of days elapsed in a 360-day year.
The indebtedness evidenced by this Note, and all other indebtedness of
Maker to Holder, however and whenever incurred or evidenced, whether primary,
secondary, direct, indirect, absolute, contingent, sole, joint, or several,
due 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 inter alia by the property
----------
encumbered by security instruments listed in Schedule 1 attached hereto and
----------
hereby made a part hereof, including all proceeds thereof and rights in
connection therewith (which property, together with additions and
substitutions, is called the "Collateral"). Holder will have such rights with
respect to the Collateral as is authorized by law. The parties expressly agree
that all of the covenants, conditions, and agreements contained in any
mortgage securing this Note are hereby made a part of this Note. If Maker
has other loans with Holder, or if Maker takes out other loans with Holder
in the future, collateral securing those loans will also secure this Note.
Maker, endorser, surety, guarantor, or other parties to this Note (all
of whom are hereinafter called "Obligor") jointly and severally agree as
follows:
Additions to, releases, reductions, or exchanges of or substitutions for
the Collateral, payments on account of this loan or increases of the same,
or other loans made partially or wholly upon the Collateral, may from time
to time be made without affecting the provisions of this Note or the
Liabilities of any party hereto. If any of the Collateral is personal
property, Holder shall exercise reasonable care in custody and preservation
of the Collateral in its possession, and will be deemed to have exercised
reasonable care if it takes such action for that purpose as Maker reasonably
requests in writing, but no omission to comply with any request of Maker will
of itself be deemed a failure to exercise reasonable care. Holder shall not be
bound to take any steps necessary to preserve any rights in the Collateral
against prior parties, and Maker shall take all necessary steps for such
purposes. Holder or its nominee need not collect interest on or principal of
any Collateral or give any notice with respect thereto.
Upon default, Maker shall, at the option of Holder and in addition to
all other remedies available to Holder, within one (1) day after demand,
deposit with Holder as part of the Collateral additional property which is
satisfactory to Holder.
Obligor will be in default under this Note upon: (a) nonpayment when due
of any interest or principal under this Note or under any other note executed
by Maker in favor of Lender, including without limitation, that certain
Promissory Note, dated even date herewith
-2-
56
in the original principal amount of $261,518.90 (any and all other notes
executed by Maker in favor of Holder as herein collectively referred to as the
"Other Notes"); (b) failure of any Obligor to perform any agreement under this
Note or the Other Notes or otherwise a part of this loan transaction or to pay
in full, when due, any liability whatsoever to Holder or any installment
thereof or interest thereon, or failure to pay when due any premium upon any
life insurance policy held as collateral hereunder; (c) the death, dissolution,
termination of existence, insolvency, or business failure of any Obligor,
appointment of a receiver of any part of the property of any such party,
assignment for the benefit of creditors by or the commencement of any
proceedings in bankruptcy or insolvency by or against any Obligor; (d) the
entry of a judgment against any Obligor which is not satisfied or stayed with
appropriate bond within thirty (30) days; (e) the issuing of any attachment or
garnishment, or the filing of any lien, against any property of any obligor;
(f) the taking of possession of any substantial part of the property of any
Obligor at the instance of any governmental authority; (g) the merger,
consolidation, or reorganization of any Obligor; (h) falsity in any
material respect of, or any material omission in, any representation or
statement made to Holder by or on behalf of any Obligor in connection with
this Note; (i) the pledge, assignment, transfer, or granting of a security
interest by any Obligor of any equity in any of the Collateral without the
written consent of Holder; or (j) the failure to promptly deliver to Holder
any and all payments made under any and all loan documents held as collateral
for this Note, including without limitation, payments made under (i) that
certain Consolidated Renewal Promissory Note, dated as of May 13, 1994,
executed by PGI Incorporated, Sugarmill Xxxxx, Inc., Burnt Store Marina,
Inc. and Gulf Coast Credit Corporation(collectively, "PGI Borrowers") and
(ii) that certain Future Advance Note, dated October 12, 1995 executed by
the PGI Borrower in favor of Holder.
Holder will have all of the rights and remedies of a creditor, mortgagee,
and secured party under all applicable law. Without limiting the generality
of the foregoing, upon the occurrence of any default under this Note, Holder
may at its option and without notice or demand: (1) declare the entire
unpaid principal and accrued interest accelerated and due and payable at once,
together with any and all other liabilities of any Obligor or any of such
liabilities selected by Holder; (2) set off against this Note all money owed
by Holder in any capacity to any Obligor whether or not due and also set off
against all other liabilities of each Obligor to Holder all money owed by
Holder in any capacity to any Obligor, and Holder will be deemed to have
exercised such right of setoff and to have made a charge against any such
money immediately upon the occurrence of such default although made or entered
on the books subsequent thereto; (3) demand, xxx for, collect, or make any
compromise or settlement it deems desirable with reference to the Collateral;
and (4) take possession or control of any proceeds of the Collateral. To the
extent that any of the Collateral is personal property and the Holder elects
to proceed with respect to it in accordance with the Uniform Commercial
Code, then unless that Collateral is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
Holder shall give Maker reasonable notice of the time and place of any public
or private sale thereof. The requirement of reasonable notice will be met if
such notice is mailed, postage prepaid, to any Obligor at the address given
below or at any other address shown on the
-3-
57
records of Holder at least twenty days before the time of sale. Upon
disposition of any Collateral after the occurrence of any default hereunder,
Maker will be and will remain liable for any deficiency; and Holder shall
account to Maker for any surplus, but Holder shall have the right to apply
all or part of such surplus (or to hold the same as a reserve) against any and
all other Liabilities of each or any Obligor to Holder.
Holder may, at any time whether or not this Note is due: (i) pledge or
transfer this Note and its interest in the Collateral, whereupon Holder will
be relieved of all duties and responsibilities hereunder and relieved from
any and all liability with respect to any Collateral so pledged or
transferred, and pledgee or transferee will for all purposes stand in the place
of Holder hereunder and have all the rights of Holder hereunder; (ii)
transfer the whole or any part of the Collateral into the name of itself or
its nominee; (iii) notify the Obligor on any Collateral to make payment to
Holder of any amounts due or to become due thereon; and (iv) exercise all
other rights necessary or required, in Holder's discretion, in order to
protect its interests under this Note.
In no event xxxx Xxxxxx be entitled to unearned or unaccrued interest or
other charges or rebates, except as may be authorized by law; nor will any
such party be entitled or receive at any time any such charges not allowed
or permitted by law, or any interest in excess of the highest lawful rate.
Any payments of interest in excess of the highest lawful rate will be
credited by Holder on interest accrued or principal or both; except that
Maker will have an option to demand refund as to any such interest or charges
in excess of the highest lawful rate.
No delay or omission on the part of Holder in exercising any right
hereunder will operate as a waiver of such right or of any other rights under
this Note. Presentment, demand, protest, notice of dishonor, and all other
notices are hereby waived by each and every Obligor. Obligor, jointly and
severally, promises and agrees to pay all costs of collection and reasonable
attorney's fees, including reasonable attorney's fees of any suit,
out of court, in trial, on appeal, in bankruptcy proceedings or otherwise,
incurred or paid by Holder in enforcing this Note or preserving any right
or interest of Holder hereunder. All notices given in connection with this Note
must be sent by certified mail, return receipt requested, and will be deemed
given three days after mailing or upon actual receipt, whichever is sooner.
Any notice to Maker shall be addressed to Maker, Suite 1400, 000 Xxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx or to any
other address shown on Holder's records.
Each Obligor hereby expressly consents to any and all extensions,
modifications, and renewals, in whole or in part, including but not limited
to changes in payment schedules and interest rates, and all delays in time
of payment or other performance which Holder may grant or permit at any time
and from time to time without limitation and without any notice to or further
consent of any Obligor. Each Obligor will also be bound by each of the
foregoing terms, without the requirement that Holder first go against any
security interest otherwise held by Holder.
-4-
58
Each Obligor hereby expressly agrees to indemnify and hold Holder
harmless against any and all Florida documentary stamp taxes and/or
intangible personal property taxes which may be deemed to be due and
payable in respect of this Note, the indebtedness evidenced thereby and any
instrument securing any indebtedness evidenced thereby. In order to secure
the performance and discharge of Obligor's obligations under the immediately
preceding sentence, but not in lieu of such obligations, Obligor, upon
execution of this Note, will pay over to Holder sufficient funds to satisfy
the Florida recurring intangible personal property tax which shall become
due and payable as of January 1, 1997, with respect to the outstanding
indebtedness evidenced by this Note. Such deposit shall not be, nor be
deemed to be, trust funds but may be commingled with the general funds of
Holder, and no interest shall be payable in respect thereof. In the event
of a default under any of the terms, covenants and conditions of this Note,
Holder may apply to the reduction of the sum secured hereby, in such manner
as Holder shall determine, any amount under this Paragraph any amount
remaining to Obligor's credit.
WAIVER OF JURY TRIAL. OBLIGOR AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE)
--------------------
HEREBY AGREE AS FOLLOWS: (A) EACH OF THEM KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION (AN
"ACTION") BASED UPON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
NOTE OR ANY RELATED DOCUMENTS, INSTRUMENTS, OR AGREEMENTS (WHETHER ORAL OR
WRITTEN AND WHETHER EXPRESS OR IMPLIED AS A RESULT OF A COURSE OF DEALING,
A COURSE OF CONDUCT, A STATEMENT, OR OTHER ACTION OF EITHER PARTY); (B) NEITHER
OF THEM MAY SEEK A TRIAL BY JURY IN ANY SUCH ACTION; (C) NEITHER OF THEM WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION (IN WHICH A JURY TRIAL HAS BEEN WAIVED)
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED;
AND (D) NEITHER OF THEM HAS IN ANY WAY AGREED WITH OR REPRESENTED TO THE OTHER
OF THEM THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
MAKERS:
PGIP L.L.C., a Missouri limited
liability company
By: /s/ Xxxxxx X. Love Jr.
---------------------------------
Name: Xxxxxx X. Love Jr.
----------------------------
Title: Manager
---------------------------
-5-
59
SCHEDULE 1
----------
1. Collateral Assignment of Notes, Mortgages and Other Loan Documents dated
even date herewith, made by Maker in favor of Holder.
-6-
60
ALL DOCUMENTARY STAMP TAXES DUE IN CONNECTION WITH THIS PROMISSORY NOTE HAVE
BEEN PAID AND THE PROPER DOCUMENTARY STAMPS ARE AFFIXED TO THE COLLATERAL
ASSIGNMENT OF NOTES, MORTGAGES AND OTHER LOAN DOCUMENTS WHICH SECURES THIS
PROMISSORY NOTE, AND WHICH IS RECORDED OR SHALL BE RECORDED IN THE PUBLIC
RECORDS OF CITRUS COUNTY, FLORIDA, AND CANCELLED.
PROMISSORY NOTE
---------------
$261,518.90 St. Louis, Missouri
March 28, 1996
FOR VALUE RECEIVED, the undersigned, and if more than one, each of them
jointly and severally (hereinafter called "Maker") promises to pay to the order
of FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association
(together with any subsequent holder of this Note, hereinafter called "Holder")
at its office in Orlando, Florida, or at such other place as Holder may from
time to time designate, the principal sum of TWO HUNDRED SIXTY ONE THOUSAND
FIVE HUNDRED EIGHTEEN AND 90/100 DOLLARS ($261,518.90), with interest thereon
from the date hereof at an adjustable interest rate of Prime (as defined below)
plus one percent (1.0%) per annum. For purposes of this Note, "Prime" shall
mean that rate of interest published in the Wall Street Journal from time to
time as the "prime rate", it being agreed that Prime is not necessarily the
lowest or best rate at any time charged by Holder. The foregoing interest
and principal will be payable in full on June 1, 1997.
The amounts due or to become due under this Note shall be paid as follows:
a. Commencing on May 1, 1996, and continuing on the first day of
each and every month thereafter, Maker shall pay all accrued and unpaid
interest, it being agreed that interest shall not begin accruing until
April 1, 1996.
b. The entire outstanding unpaid principal balance together with
all accrued and unpaid interest and all other sums due hereunder shall be due
and payable on June 1, 1997 ("Maturity Date").
If any payment is more than 10 days late, Maker shall pay Holder,
without notice or demand, a late charge equal to 5% of the payment. The
foregoing late charge is provided to compensate Holder for its expense in
collecting and administering delinquent payments and is not to be construed
as interest.
After the maturity or due date of this Note, through acceleration or
otherwise, at the election of Holder, interest will accrue on the principal
balance remaining unpaid at the lesser of (i) Prime plus three percent (3.0%)
per annum, or (ii) the highest lawful rate.
61
All payments hereunder will first be credited to interest and lawful
charges then accrued and the remainder to principal.
All interest on this Note will be computed on the basis of the actual
number of days elapsed in a 360-day year.
The indebtedness evidenced by this Note, and other indebtedness of
Maker to Holder, however and whenever incurred or evidenced, whether primary,
secondary, direct, indirect, absolute, contingent, sole, joint, or several,
due 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 inter alia by the
----------
property encumbered by security instruments listed in Schedule 1 attached
----------
hereto and hereby made a part hereof, including all proceeds thereof and rights
in connection therewith (which property, together with additions and
substitutions, is called the "Collateral"). Holder will have such rights with
respect to the Collateral as is authorized by law. The parties expressly agree
that all of the covenants, conditions, and agreements contained in any
mortgage securing this Note are hereby made a part of this Note. If Maker has
other loans with Holder, or if Maker takes out other loans with Holder in the
future, collateral securing those loans will also secure this Note.
Maker, endorser, surety, guarantor, or other parties to this Note (all
of whom are hereinafter called "Obligor") jointly and severally agree as
follows:
Additions to, releases, reductions, or exchanges of or substitutions
for the Collateral, payments on account of this loan or increases of the
same, or other loans made partially or wholly upon the Collateral, may from
time to time be made without affecting the provisions of this Note or the
Liabilities of any party hereto. If any of the Collateral is personal property,
Holder shall exercise reasonable care in the custody and preservation of the
Collateral in its possession, and will be deemed to have exercised reasonable
care if it takes such action for that purpose as Maker reasonably requests
in writing, but no omission to comply with any request of Maker will of itself
be deemed a failure to exercise reasonable care. Holder shall not be bound
to take any steps necessary to preserve any rights in the Collateral against
prior parties, and Maker shall take all necessary steps for such purposes.
Holder or its nominee need not collect interest on or principal of any
Collateral or give any notice with respect thereto.
Upon default, Maker shall, at the option of Holder and in addition to
all other remedies available to Holder, within one (1) day after demand,
deposit with Holder as part of the Collateral additional property which is
satisfactory to Holder.
Obligor will be in default under this Note upon: (a) nonpayment when due
of any interest or principal under this Note or under any other note executed
by Maker in favor of Lender, including without limitation, that certain
Promissory Note, dated even date herewith in the original principal amount of
$2,748,001.65 (any and all other notes executed by Maker in favor of Holder
as herein collectively referred to as the "Other Notes"); (b) failure of
any Obligor to perform any agreement under this Note or the Other Notes or
otherwise a part of this loan transaction or to pay in full, when due, any
liability whatsoever to Holder or any
-2-
62
installment thereof or interest thereon, or failure to pay when due any
premium upon any life insurance policy held as collateral hereunder; (c) the
death, dissolution, termination of existence, insolvency, or business failure
of any Obligor, appointment of a receiver of any part of the property of any
such party, assignment for the benefit of creditors by or the commencement
of any proceedings in bankruptcy or insolvency by or against any Obligor;
(d) the entry of a judgment against any Obligor which is not satisfied or
stayed with appropriate bond within thirty (30) days; (e) the issuing of any
attachment or garnishment, or the filing of any lien, against any property
of any obligor; (f) the taking of possession of any substantial part of the
property of any Obligor at the instance of any governmental authority; (g) the
merger, consolidation, or reorganization of any Obligor; (h) falsity in any
material respect of, or any material omission in, any representation or
statement made to Holder by or on behalf of any Obligor in connection with
this Note; (i) the pledge, assignment, transfer, or granting of a security
interest by any Obligor of any equity in any of the Collateral without the
written consent of Holder; or (j) the failure to promptly deliver to Holder
any and all payments made under any and all loan documents held as collateral
for this Note, including without limitation, payments made under (i) that
certain Consolidated Renewal Promissory Note, dated as of May 13, 1994,
executed by PGI Incorporated, Sugarmill Xxxxx, Inc., Burnt Store Marina, Inc.
and Gulf Coast Credit Corporation (collectively, "PGI Borrowers") and (ii)
that certain Future Advance Note, dated October 12, 1995 executed by the PGI
Borrower in favor of Holder.
Holder will have all of the rights and remedies of a creditor, mortgagee,
and secured party under all applicable law. Without limiting the generality
of the foregoing, upon the occurrence of any default under this Note, Holder
may at its option and without notice or demand: (1) declare the entire unpaid
principal and accrued interest accelerated and due and payable at once,
together with any and all other responsibilities of any Obligor or any of
such liabilities selected by Holder; (2) set off against this Note all money
owed by Holder in any capacity to each or any Obligor whether or not due and
also set off against all other liabilities of each Obligor to Holder all money
owed by Holder in any capacity to any Obligor, and Holder will be deemed to
have exercised such right of setoff and to have made a charge against any
such money immediately upon the occurrence of such default although made or
entered on the books subsequent thereto; (3) demand, xxx for, collect, or
make any compromise or settlement it deems desirable with reference to the
Collateral; and (4) take possession or control of any proceeds of the
Collateral. To the extent that any of the Collateral is personal property
and the Holder elects to proceed with respect to it in accordance with the
Uniform Commercial Code, then unless that Collateral is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market, Holder shall give Maker reasonable notice of the time and place of any
public or private sale thereof. The requirement of reasonable notice will be
met if such notice is mailed, postage prepaid, to any Obligor at the address
given below or at any other address shown on the records of Holder at least
twenty days before the time of sale. Upon disposition of any Collateral after
the occurrence of any default hereunder, Maker will be and will remain liable
for any deficiency; and Holder shall account to Maker for any surplus, but
Holder shall have
-3-
63
the right to apply all or part of such surplus (or to hold the same as a
reserve) against any and all other Liabilities of each or any Obligor to
Holder.
Holder may, at any time whether or not this Note is due: (i) pledge or
transfer this Note and its interest in the Collateral, whereupon Holder will
be relieved of all duties and responsibilities hereunder and relieved from
any and all liability with respect to any Collateral so pledged or transferred,
and pledgee or transferee will for all purposes stand in the place of Holder
hereunder and have all the rights of Holder hereunder; (ii) transfer the whole
or any part of the Collateral into the name of itself or its nominee; (iii)
notify the Obligor on any Collateral to make payment to Holder of any amounts
due or to become due thereon; and (iv) exercise all other rights necessary
or required, in Holder's discretion, in order to protect its interests under
this Note.
In no event xxxx Xxxxxx be entitled to unearned or unaccrued interest or
other charges or rebates, except as may be authorized by law; nor will any
such party be entitled or receive at any time any such charges not allowed
or permitted by law, or any interest in excess of the highest lawful rate.
Any payments of interest in excess of the highest lawful rate will be credited
by Holder on interest accrued or principal or both; except that Maker will
have an option to demand refund as to any such interest or charges in excess
of the highest lawful rate.
No delay or omission on the part of Holder in exercising any right
hereunder will operate as a waiver of such right or of any other rights under
this Note. Presentment, demand, protest, notice of dishonor, and all other
notices are hereby waived by each and every Obligor. Obligor, jointly and
severally, promises and agrees to pay all costs of collection and reasonable
attorney's fees, including reasonable attorney's fees of any suit, out of
court, in trial, on appeal, in bankruptcy proceedings or otherwise, incurred
or paid by Holder in enforcing this Note or preserving any right or interest
of Holder hereunder. All notices given in connection with this Note must be
sent by certified mail, return receipt requested, and will be deemed given
three days after mailing or upon actual receipt, whichever is sooner. Any
notice to Maker shall be addressed to Maker, Suite 1400, 000 Xxxxx Xxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx or to any other
address shown on Holder's records.
Each Obligor hereby expressly consents to any and all extensions,
modifications, and renewals, in whole or in part, including but not limited
to changes in payment schedules and interest rates, and all delays in time
of payment or other performance which Holder may grant or permit at any time
and from time to time without limitation and without any notice to or further
consent of any Obligor. Each Obligor will also be bound by each of the
foregoing terms, without the requirement that Holder first go against any
security interest otherwise held by Holder.
Each Obligor hereby expressly agrees to indemnify and hold Holder
harmless against any and all Florida documentary stamp taxes and/or
intangible personal property taxes which
-4-
64
may be deemed to be due and payable in respect of this Note, the
indebtedness evidenced thereby and any instrument securing any indebtedness
evidenced thereby. In order to secure the performance and discharge of
Obligor's obligations under the immediately preceding sentence, but not in
lieu of such obligations, Obligor, upon execution of the Note will pay
over to Holder sufficient funds to satisfy the Florida recurring intangible
personal property tax which shall become due and payable as of January 1,
1997 with respect to the indebtedness evidenced by this Note. Such deposit
shall not be, nor be deemed to be, trust funds but may be commingled with
the general funds of Holder, and no interest shall be payable in respect
thereof. In the event of a default under any of the terms, covenants and
conditions of this Note, Holder may apply to the reduction of the sum secured
hereby, in such manner as Holder shall determine, any amount under this
Paragraph any amount remaining to Obligor's credit.
WAIVER OF JURY TRIAL. OBLIGOR AND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE)
--------------------
HEREBY AGREE AS FOLLOWS: (A) EACH OF THEM KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION (AN
"ACTION") BASED UPON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
NOTE OR ANY RELATED DOCUMENTS, INSTRUMENTS, OR AGREEMENTS (WHETHER ORAL OR
WRITTEN AND WHETHER EXPRESS OR IMPLIED AS A RESULT OF A COURSE OF DEALING,
A COURSE OF CONDUCT, A STATEMENT, OR OTHER ACTION OF EITHER PARTY); (B)
NEITHER OF THEM MAY SEEK A TRIAL BY JURY IN ANY SUCH ACTION; (C) NEITHER OF
THEM WILL SEEK TO CONSOLIDATE ANY SUCH ACTION (IN WHICH A JURY TRIAL HAS BEEN
WAIVED) WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED; AND (D) NEITHER OF THEM HAS IN ANY WAY AGREED WITH OR PRESENTED TO THE
OTHER OF THEM THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED
IN ALL INSTANCES.
MAKERS:
PGIP L.L.C., a Missouri limited
liability company
By: /s/ Xxxxxx X. Love Jr.
----------------------------------
Name: Xxxxxx X. Love Jr.
----------------------------
Title: Manager
---------------------------
-5-
65
SCHEDULE 1
----------
1. Collateral Assignment and Notes, Mortgages and Other Loan Documents dated
even date herewith, made by Maker in favor of Holder.
-6-
66
THIS INSTRUMENT PREPARED BY AND RETURN TO:
XXXXXXX X. XXXXXXXXX, ESQUIRE
CARLTON, FIELDS, XXXX, XXXXXXXX,
XXXXX & XXXXXX, P.A.
XXXX XXXXXX XXX 0000
XXXXX, XXXXXXX 00000
COUNTERPART ORIGINALS OF THIS COLLATERAL ASSIGNMENT OF NOTES, MORTGAGES AND
OTHER LOAN DOCUMENTS ARE BEING RECORDED IN CITRUS COUNTY AND HERNANDO COUNTY,
FLORIDA. FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $11,373.00 ARE BEING
PAID UPON THE RECORDATION OF THIS INSTRUMENT IN CITRUS COUNTY, FLORIDA.
COLLATERAL ASSIGNMENT OF NOTES,
MORTGAGES AND OTHER LOAN DOCUMENTS
THIS COLLATERAL ASSIGNMENT OF NOTES, MORTGAGES AND OTHER LOAN DOCUMENTS
("Assignment") is made as of March 28, 1996 by PGIP L.L.C., a Missouri limited
----------
liability company ("Assignor"), having a mailing address of 000 Xxxxx Xxxxxx,
--------
Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, to and for the benefit of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association ("Assignee"), having a
--------
mailing address of Special Assets Department (FL 2202), 000 Xxxxx Xxxxxxxx,
Xxxxxxx, Xxxxxxx 00000.
BACKGROUND
In connection with that certain Note and Loan Document Purchase
Agreement executed by and between Assignee, Assignor, and PGI Incorporated,
Sugarmill Xxxxx, Inc., Burnt Store Marina, Inc., and Gulf Coast Credit
Corporation (collectively, "Borrowers") dated effective October 12, 1995, as
---------
amended by those certain letter agreements, dated November 10, 1995, December
15, 1995, January 17, 1996, and February 16, 1996, and as further amended
by that certain Modification of Note and Loan Document Purchase Agreement
dated and effective as of even date herewith (as amended, "Purchase Agreement"),
------------------
Assignor executed that certain Promissory Note in the original principal
amount of $2,988,001.65 in favor of Assignee ("Note A") and that certain
------
Promissory Note in the original principal amount of $261,518.90 in favor of
Assignee ("Note B"; Note B
------
67
together with Note A, the "Notes"). As security for repayment of the Notes,
-----
Assignor has agreed to assign to Assignee all of Assignor's right, title and
interest in and to: (1) that certain Consolidated Renewal Promissory Note,
dated as of May 13, 1994, executed by Borrowers in favor of Assignee, in the
original principal amount of $7,001,615.29 ("Consolidated Note"), which
-----------------
Consolidated Note was assigned to Assignor pursuant to that certain Assignment
of Notes, Mortgages and Loan Documents executed by Assignee in favor of
Assignor dated effective of even date herewith ("Assignment of Notes");
(2) that certain Future Advance Note, dated October 12, 1995, executed by
Borrowers in favor of Assignee, in the original principal amount of
$241,617.65 ("Future Advance Note"), which Future Advance Note was assigned to
-------------------
Assignor pursuant to the provisions of the Assignment of Notes; and (3) any
and all other documents evidencing or securing any portion of the indebtedness
evidenced by the Consolidated Note or the Future Advance Note, including
without limitation, the documents listed in Exhibit A attached hereto and made
---------
a part hereof (collectively, the "Other Loan Documents"), which Other Loan
--------------------
Documents were assigned to Assignor pursuant to the provisions of the
Assignment of Notes. Hereinafter, the Consolidated Note, the Future Advance
Note and the Other Loan Documents shall be referred to herein, collectively,
as the "Collateral Loan Documents."
-------------------------
OPERATIVE TERMS
The parties agree as follows:
1. As security for payment and satisfaction of all Assignor's liabilities
and obligations to Assignee, including without limitation, Assignor's liability
to Assignee under the Notes, Assignor hereby assigns to Assignee and its
successors and assigns all of Assignor's present and hereafter acquired right,
title, and interest in and to the Collateral Loan Documents and in all money
and payments that are due or to become due (including interest and penalties)
under the Collateral Loan Documents. Concurrently with its execution of this
Assignment, Assignor shall endorse the Consolidated Note and the Future
Advance Note payable to Assignee and deliver the Collateral Loan Documents to
Assignee; and, hereafter, at the request of Assignee, Assignor shall execute
and deliver to Assignee any other documents and instruments as Assignee, in
its sole discretion, determines are necessary to perfect or maintain
Assignee's security interest in the Collateral Loan Documents. Assignor hereby
irrevocably appoints Assignee as Assignor's attorney-in-fact to execute and
file on Assignor's behalf any financing statements, and any refilings and
continuations thereof, as Assignee deems necessary or appropriate to perfect
Assignee's security interests granted in this Assignment.
2. The parties intend that this instrument create a present assignment
of the Collateral Loan Documents. Until all amounts due under the Notes have
been repaid in full, Assignor shall not collect any payments under the
Collateral Loan Documents. If Assignor receives any such payment from the
Borrowers before all amounts due under the Notes have been repaid in full,
Assignor shall be deemed to be holding the same in trust for Assignee
2
68
and shall immediately deliver the same to Assignee. Upon repayment of all
sums due pursuant to the Notes in full, Assignee shall endorse the
Consolidated Note and Future Advance Note payable to Assignor and assign the
Collateral Loan Documents to Assignor and release this Assignment and any and
all other assignments, pledges or UCC's held by Assignee in connection with
this Assignment. THE BORROWERS ARE HEREBY IRREVOCABLY AUTHORIZED AND DIRECTED
BY ASSIGNOR TO MAKE ALL PAYMENTS UNDER THE COLLATERAL LOAN DOCUMENTS DIRECTLY
TO ASSIGNEE UNTIL THE NOTES HAVE BEEN PAID IN FULL AND TO RELY UPON ANY AND
ALL INSTRUCTIONS FROM ASSIGNEE, WITHOUT HAVING ANY RIGHT OR DUTY TO INQUIRE
AS TO WHETHER AN EVENT OF DEFAULT HAS OCCURRED UNDER THIS ASSIGNMENT OR THE
NOTES.
3. Assignor represents and warrants to Assignee that (a) Assignor has
received consideration sufficient to induce Assignor to execute and deliver
this Assignment and to perform all its obligations under this Assignment;
(b) Assignor has full authority to execute, deliver and perform its obligations
under this Agreement; (c) upon the delivery to Assignee of this Assignment
and the Collateral Loan Documents, Assignee will have a first perfected
security interest in the Collateral Loan Documents, and no person or entity,
other than Assignor, Assignee and the Borrowers will have any interest in
the respective Collateral Loan Documents; and (d) each of the Collateral
Loan Documents is enforceable in accordance with its respective terms, and,
the Borrowers have no defenses, counterclaims, or offsets to its obligations
under the Collateral Loan Documents.
4. Assignor covenants not to sell, assign, hypothecate, encumber, amend,
subordinate, modify, renew, replace or accept any prepayment (by acceleration
or otherwise) of the Collateral Loan Documents without the prior written
consent of Assignee. If any of the foregoing events occurs (with or without
the consent of Assignee), Assignor immediately shall notify Assignee of the
occurrence of the event, and Assignee, in it sole discretion and without
limiting any other of its rights under this Assignment, may require Assignor
to prepay the Note by the full amount of the consideration, proceeds, or
payments received by Assignor in connection with the event.
5. Assignor shall timely perform all its obligations under the Collateral
Loan Documents and immediately shall notify Assignee of any default or breach
of Assignor or the Borrowers under the Collateral Loan Documents. Assignor
shall not, without the prior written consent of Assignee, (i) waive any breach
or default by the Borrowers under the terms of the Collateral Loan Documents,
(ii) permit any modification or termination of the Collateral Loan Documents
or (iii) release any of the collateral encumbered by the Mortgages on the
Other Loan Documents.
6. If the Borrowers default under the Collateral Loan Documents (i) by
permitting or committing any waste, impairment or deterioration of the
property encumbered by the Collateral Loan Documents or taking any action which
would increase the risk of damage to such property, (ii) by failing to pay
promptly when due any and all taxes, assessments, dues, charges, fees,
levies, fines, impositions, liabilities and encumbrances of every kind, now
or hereafter imposed, levied or assessed upon or against the property
encumbered by the Collateral Loan Documents, or (iii) by selling, conveying,
transferring,
3
69
leasing, or further encumbering the property encumbered by the Collateral
Loan Documents without making the appropriate principal reduction payment
thereunder, then, Assignee, at its sole option, may, at Assignor's sole
expense, on Assignee's own behalf or otherwise, enforce the Collateral Loan
Documents and exercise any or all other remedies available to Assignor under
the Collateral Loan Documents with or without joining Assignor as a party.
The foregoing rights of Assignee are cumulative, and Assignee may exercise
any one or more of them without waiving its rights to exercise the others.
7. If Assignor becomes obligated under this Agreement to pay any
amounts to Assignee, such amounts will be secured by this Assignment and
Assignor promptly shall pay such amounts to Assignee, together with interest
thereon, from the date when due, at the maximum rate allowable under
applicable law. At its option, Assignee may collect any or all such amounts,
together with accrued interest, if any, from payments by the Borrowers under
the Consolidated Note and Future Advance Note.
8. This Assignment does not create any obligation or liability on the
part of Assignee, and Assignor shall indemnify Assignee from any claim, costs,
expense or liability incurred by Assignee as a result of this Assignment,
including, without limitation, attorneys' and paralegals' fees and costs
incurred in the enforcement of this Assignment (including, without
limitation, attorneys' and paralegals' fees and costs incurred in any
litigation, mediation, arbitration, bankruptcy and administrative proceedings,
and any appeals therefrom.)
9. Upon payment in full of the indebtedness evidenced by the Note and
the satisfaction in full of all other obligations of Assignor under this
Assignment Assignee shall reassign the Collateral Loan Documents to Assignor,
and this Assignment will be null and void and have no further force or effect.
10. This Assignment binds and inures to the benefit of the respective
successors and assigns of Assignor and Assignee.
SIGNED, SEALED AND DELIVERED ASSIGNOR:
IN THE PRESENCE OF:
PGIP L.L.C., a Missouri limited
/s/ Xxxx X. XxXxxxxxx liability company
-----------------------------
(Signature)
Xxxx X. XxXxxxxxx
----------------------------- By: /s/ Xxxxxx X. Love Jr.
(Printed Name) ------------------------------
Name: Xxxxxx X. Love Jr.
-------------------------
Title: Manager
/s/ Xxxxxxx X. Xxxxxxxxx -------------------------
-----------------------------
(Signature)
Xxxxxxx X. Xxxxxxxxx
-----------------------------
(Printed Name)
4
70
ASSIGNEE:
FIRST UNION NATIONAL
/s/ Xxxx X. XxXxxxxxx BANK OF FLORIDA, a
----------------------------- national banking association
(Signature)
(CORPORATE SEAL)
Xxxx X. XxXxxxxxx
-----------------------------
(Printed Name) By: /s/ Xxxxxx X. Xxxxx III
------------------------------
Name: Xxxxxx X. Xxxxx III
------------------------
Title: Asst. Vice Pres.
------------------------
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
(Signature)
Xxxxxxx X. Xxxxxxxxx
-----------------------------
(Printed Name)
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 28th day of
March, 1996, by Xxxxxx X. Love as Manager of PGIP L.L.C., a Missouri limited
liability company, on behalf of the company. He/She is personally known to
--
me or has produced MO (state) driver's license no. ###-##-#### as
identification.
My Commission Expires: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
(AFFIX NOTARY SEAL) Notary Public (Signature)
XXXXXXXX X. XXXXXX Xxxxxxxx X. Xxxxxx
MY COMMISSION # CC 374628 ----------------------------------
EXPIRES: June 25, 1998 (Printed Name)
Bonded Thru Notary Public Underwriters
----------------------------------
(Title or Rank)
----------------------------------
(Serial Number, if any)
5
71
STATE OF FLORIDA
COUNTY OF ORANGE
The forgoing instrument was acknowledged before me this 28th day of
March, 1996, by Xxxxxx X. Xxxxx III as Assoc. Vice Pres. of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association, on behalf of the
association. He/She is personally known to me or has produced ------ (state)
--
driver's license no. --------------------------------- as identification.
My Commission Expires: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Notary Public (Signature)
(AFFIX NOTARY SEAL)
XXXXXXXX X. XXXXXX Xxxxxxxx X. Xxxxxx
MY COMMISSION # CC 374628 ----------------------------------
EXPIRES: June 25, 1998 (Printed Name)
Bonded Thru Notary Public Underwriters
----------------------------------
(Title or Rank)
----------------------------------
(Serial Number, if any)
6
72
EXHIBIT A
---------
LOAN DOCUMENTS
--------------
1. Substitute Renewal Mortgage No. 1, dated as of October 19, 1985, executed
by Borrowers in favor of Naples, and recorded in the Public Records of
Citrus County, Florida at O.R. Box 682, Page 2140, and in the Public
Records of Hernando County, Florida, at O.R. Book ----, Page ----, as each
of the same may have been amended from time to time.
2. Substitute Renewal Mortgage No. 2, dated as of October 19, 1985, executed
by Punta Gorda Isles, Inc., Punta Gorda Developers, Inc. and Burnt Store
Marina, Inc. in favor of The First National Bank of Chicago, as Agent
("FNBC"), and recorded at O.R. Book 837, Page 959 of the Public Records of
----
Charlotte County, Florida, and recorded at O.R. Book 682, Page 1952 of the
Public Records of Citrus County, Florida, which Substitute Renewal
Mortgage No. 2 was assigned by FNBC to Naples pursuant to: (i) that certain
Assignment of Mortgage recorded at O.R. Book 683, Page 187 of the Public
Records of Citrus County, Florida, (ii) that certain Assignment of
Mortgages recorded at O.R. Book 683, Page 190 of the Public Records of
Citrus County, Florida and O.R. Book 683, Page 195 of the Public Records
of Citrus County, Florida, as the same may have been amended from time
to time.
3. Restated Loan Agreement No. 1, dated October 19, 1985, executed between
Naples and Borrowers as the same may have been amended from time to time.
4. Divided Security Agreement and Pledge of Collateral No. 1, dated October 19,
1985, executed by Borrowers in favor of Naples, as the same may have been
amended from time to time.
5. Divided Assignment of Notes, Mortgages, Contracts and Agreements for
Deed No. 1 dated as of October 19, 1985, executed by Borrowers in favor of
Naples, as the same may have been amended from time to time.
6. Platinum Point Loan Documents, as described in that Thirteenth Mortgage &
Loan Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor in
interest by merger to Lender.
7. Tugboat Loan Documents, as described in that Thirteenth Mortgage & Loan
Modification Agreement, dated as of May 13, 1994, executed by and between
Borrowers and BancFlorida, a Federal Savings Bank, predecessor in interest
by merger to Lender.
73
8. Loan and Security Agreement, dated October 1, 1984, executed by PGI, PGD,
Marina, FNBC, CREI or FNB, as agent ("Land Loan Agreement"), a portion of
-------------------
which Agreement was assigned by FNBC and CREI to Naples pursuant to a Note
Purchase Agreement, dated October 19, 1985, as the same may have been
amended from time to time.
9. Loan and Security Agreement, dated as of October 1, 1984, executed among
PGI, PGD, Marina, FNBC, CREI and FNBC, as Agent, as the same may have
been modified from time to time ("FNBC Receivables Loan Agreement"), a
-------------------------------
portion of which Agreement was assigned by FNBC and CREI to Naples
pursuant to a Note Purchase Agreement, dated October 19, 1985, as the
same may have been amended from time to time.
10. Restated Loan and Security Agreement, dated as of March 25, 1987,
executed by and among Borrowers and Naples, as the same may have been
amended from time to time ["to be read in conjunction with Restated Loan
Agreement No. 1" - item 3 above]
11. Pledge Agreement, dated as of March 25, 1987, executed among Punta Gorda
Isles, Inc., Punta Gorda Developers, Inc. and Naples regarding stock
collateral, as the same may have been amended from time to time.
12. Security Agreement, dated March 25, 1987, executed among Borrowers and
Naples regarding blanket lien on all of Borrower's assets, as the same
may have been amended from time to time.
13. Together with Assignor's right, title and interest, if any, in any
additional security instruments securing the indebtedness under the
Consolidated Note and the Future Advance Note.
A-2
