Exhibit 10.3
SECOND AMENDED AND RESTATED PROMISSORY NOTE
December 31, 2004
FOR VALUE RECEIVED,
the undersigned, T-BIRD NEVADA, LLC , a Nevada
limited liability company (the "Borrower"), promises to pay to the
order of BANK OF AMERICA, N.A. , a national
banking association (the "Lender"), at its office at 101 East
Kennedy Boulevard, Tampa, Florida 33602 or at such other place as
the holder of this Note from time to time may designate to the
Borrower in writing, the principal sum of THIRTY-FIVE MILLION AND
NO/100 DOLLARS ($35,000,000.00), or so much thereof as may be
outstanding, together with interest on the principal balance of
this obligation from time to time remaining unpaid, at the rates
and at the times provided in this Note. All payments required by
this Note must be by legal tender of the United States of
America.
The principal amount
of this obligation will be disbursed by the Lender to the Borrower
in accordance with the terms and conditions of that certain Second
Amended and Restated Loan Agreement dated of even date herewith
between the Borrower and the Lender, as amended or modified from
time to time (the "Loan Agreement"). All capitalized terms used
herein but not otherwise defined herein shall have the meanings
ascribed to such terms in the Loan Agreement.
Borrower shall have
the right to choose the Floating LIBO Rate or the Base Rate to
apply to all advances under this Note prior to the occurrence and
continuance of an Event of Default. Borrower shall further have the
right to change the interest rate that is applicable to advances
under this Note from the Floating LIBO Rate to the Base Rate and
vice versa prior to the occurrence and continuance of an Event of
Default. Borrower shall provide Lender with irrrevocable notice of
its election of the interest rate that is applicable to each
advance under this Note. If Borrower fails to provide such notice
to Lender prior to any disbursements under this Note, such advance
shall bear interest at the Floating LIBO Rate.
As used in this Note,
the following terms shall have the following meanings:
1. Advance
or Advances . Any Advances under this Note either individually
or collectively as applicable.
2. Base
Rate : The per annum interest rate equal to the greater of (i)
the Prime Rate, or (ii) one-half of one percent (0.5%) above the
Federal Funds Rate for such day.
3. Business
Day . Any day other than a Saturday, Sunday or other day on
which commercial banks in Jacksonville, Florida are closed for
business.
4. Default
Rate . The interest rate that is applicable to the principal
outstanding under this Note plus three percent (3.0%) per
annum.
5. Federal
Funds Rate . Means for any day, the rate per annum rounded
upward to the nearest one one-hundredth of one percent announced by
the Federal Reserve Bank of Atlanta on such day as being the
weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous
trading day, as computed and announced by such Federal Reserve
Bank.
6. Floating
LIBO Rate . A fluctuating rate of interest per annum equal to
the Applicable Margin in excess of the rate obtained by dividing
(a) the rate of interest per annum at which deposits in United
States dollars are offered in the London Interbank market in an
amount substantially equal to the Floating LIBO Rate Advance and
with a term equal to ninety (90) days, as appears on the LIBO Rate
Reference Page as of 11:00 a.m. (London time) on the date for which
the Floating LIBO Rate is being calculated, by (b) an amount equal
to 1 minus the Floating LIBO Reserve Requirement for such
date. If at least two such offered rates appear on the LIBO Rate
Reference Page, the rate will be the arithmetic mean of such
offered rates. The Lender may, in its discretion, use any other
publicly available index or reference rate showing rates offered
for United States dollar deposits in the London Interbank market as
of the applicable date. In addition, the Lender may, in its
discretion, use rate quotations for daily or annual periods in lieu
of quotations for substantially equivalent monthly periods.
7. Floating
LIBO Reserve Requirement . The rate at which reserves
(including, without limitation, any marginal, supplemental or
emergency reserves) are required to be maintained by the Lender on
the date for which interest is being calculated, against U.S.
dollar nonpersonal time deposits in the United States with a term
equal to ninety (90) days, expressed as a decimal.
8. LIBO
Rate Reference Page . Any of (a) the Reuters Screen LIBO Page,
(b) the Dow Jones Telerate Page 3750 or (c) such other nationally
recognized source, as may from time to time by used by the Lender
in its sole discretion as a ref