ALL STATE OF
FLORIDA DOCUMENTARY STAMP TAXES WITH RESPECT TO THE INDEBTEDNESS
EVIDENCED HEREBY HAVE BEEN PAID IN CONNECTION WITH THE FUTURE
ADVANCE NOTE (AS DEFINED HEREIN) AND THAT CERTAIN NOTICE OF FUTURE
ADVANCE AND FIFTH AMENDED AND RESTATED MORTGAGE AND SECURITY
AGREEMENT OF EVEN DATE HEREWITH FROM BORROWER IN FAVOR OF BANK. NO
ADDITIONAL DOCUMENTARY STAMP TAXES ARE DUE IN CONNECTION WITH THIS
NOTE.
CONSOLIDATED, AMENDED AND
RESTATED PROMISSORY NOTE
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U.S.
$10,600,000.00
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Tampa, Florida
March 12, 2009
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WHEREAS ,
the undersigned Borrower currently has two (2) existing term
notes with SUNTRUST BANK , a Georgia banking corporation
(hereinafter called “Bank” , which term shall
include all subsequent holders of this Note by assignment or
otherwise), as evidenced by (i) that certain Promissory Note
(the “Original Note” ) dated November 1,
2004, payable to the order of Bank, in the original principal
amount of $12,000,000.00; and (ii) that certain Future Advance
Promissory Note of even date herewith, in the original amount of
$2,500,000.00 (the “Future Advance Note” ). The
Original Note and the Future Advance Note shall be collectively
referred to herein as the “Consolidated Notes”
;
AND
WHEREAS , the current outstanding principal balance under the
Original Note is $8,100,000.00;
AND
WHEREAS , Borrower and Bank wish to consolidate the
Consolidated Notes to form one consolidated loan facility in the
amount of $10,600,000.00 (the “Consolidated
Loan” ) to be repaid pursuant to the terms of this
Consolidated, Amended, and Restated Promissory Note (this
“Note” );
NOW,
THEREFORE , the Consolidated Notes are hereby amended and
replaced in their entireties by the this terms of this Note.
Effective as of the date hereof (the “Effective
Date” ), the Consolidated Notes are hereby consolidated
to form the Consolidated Loan in the principal amount of Ten
Million Six Hundred Thousand and No/100ths Dollars ($10,600,000.00)
to be repaid pursuant to the terms of this Note.
Borrower promises
to pay to Bank, or order, the sum of TEN MILLION SIX HUNDRED
THOUSAND AND 100/100 DOLLARS ( $10,600,000.00 ),
together with interest from the date hereof at the respective rates
of interest hereinafter provided, all in the manner further
provided for herein.
The principal
outstanding under this Note shall bear interest at the Interest
Rate (as hereinafter defined), which Interest Rate shall be
adjusted on each Interest Rate Determination Date (as hereinafter
defined). The term “Advances” shall mean any portion of
the outstanding principal balance of this Note. The term
“Interest Rate” means two and one-half percent
(2.50%) per annum above One Month Match-Funded LIBOR (as
hereinafter defined). The term “One Month
Match-Funded
LIBOR Rate” means
that rate per annum which is the quotient of:
(i) the
rate per annum equal to the offered rate for deposits in U.S.
dollars of amounts comparable to the principal amount of the
applicable Advance offered for a term comparable to the applicable
Interest Period, which rate appears on that page of Bloomberg
reporting service, or such similar service as determined by Bank,
that displays British Bankers’ Association interest
settlement rates for deposits in U.S. Dollars, as of
11:00 A.M. (London, England time) two (2) Business Days
prior to the first day of such Interest Period; provided ,
that if no such offered rate appears on such page, the rate used
for such Interest Period will be the per annum rate of interest
determined by Bank to be the rate at which U.S. dollar deposits for
the relevant Interest Period in an amount comparable to the amount
of the applicable Advance, are offered to Bank in the London
Inter-Bank Market as of 11:00 A.M. (London, England time), on
the day which is two (2) Business Days prior to the first day
of such Interest Period, divided by
(ii) a
percentage equal to 1.00 minus the maximum rate of all
reserve requirements (expressed as a decimal) as specified in
Regulation D of the Board of Governors of the Federal Reserve
System (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that would be applicable
on the day which is two (2) Business Days prior to the first
day of the Interest Period during which the One Month Match-Funded
LIBOR Rate is to be applicable to Eurocurrency liabilities in an
amount substantially equal to the principal amount of the
applicable Advance and with a maturity date as of the last day of
the applicable Interest Period, all as reasonably determined by
Bank, such sum to be rounded up to the nearest whole multiple of
1/100 of 1%.
If Bank determines
in its sole discretion at any time (the “Determination
Date” ) that it can no longer make, fund or maintain
LIBOR based loans for any reason, including without limitation
illegality, or the LIBOR Rate cannot be ascertained or does not
accurately reflect Bank’s cost of funds, or Bank would be
subject to Additional Costs (as hereinafter defined) that cannot be
recovered from Borrower, then Bank will notify Borrower and
thereafter will have no obligation to make, fund or maintain LIBOR
based loans. Upon such Determination Date, the Interest Rate will
be converted to a variable rate based upon the Prime Rate (as
hereinafter defined). Thereafter, the Interest Rate shall adjust
simultaneously with any fluctuation in the Prime Rate.
“Prime Rate” shall mean the publicly announced
prime lending rate of the Bank from time to time in effect, which
rate may not be the lowest or best lending rate made available by
the Bank.
Anything to the
contrary contained herein notwithstanding, Borrower may elect to
enter into an interest swap contract with SunTrust Robinson
Humphrey Capital Markets to convert the above variable rate to a
fixed rate. The fixed rate available through the swap is a
market-derived rate and changes with market conditions until it is
locked-in. Any such rate swap contract shall be
cross-collateralized and cross-defaulted with the loan documents
evidencing this Consolidated Loan. Hedging options may be chosen
with various tenors not to exceed the 5-year maturity and
10 year amortization of the Consolidation Loan.
2
The term
“Business Day” as hereinabove used shall mean a
day on which the foreign exchange markets in London, England are
open for business. The term “Interest Rate Determination
Date” as hereinabove shall mean and refer to the date of
this Note and the twelfth day of each calendar month thereafter,
provided, however, that if the twelfth day of each calendar month
occurs on a day which is not a Business Day, then the Interest Rate
Determination Date shall be the first Business Day thereafter. The
term “Interest Period” as hereinabove used means
the period commencing on each Interest Rate Determination Date and
ending the day before the next Interest Rate Determination
Date.
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