Exhibit 10.4
CONSOLIDATED
RENEWAL
PROMISSORY
NOTE
(“Promissory Note” or
“Note”)
|
|
|
|
|
|
|
|
|
$13,600,000.00
|
|
|
|
|
|
HILLSBOROUGH,
|
|
|
|
|
|
|
|
FLORIDA
|
|
|
|
|
|
|
|
OCTOBER
, 2008
|
FOR VALUE
RECEIVED, the undersigned, POST,
BUCKLEY, SCHUH & JERNIGAN, INC., a Florida
corporation, (“Maker” or “Borrower”),
promises to pay to the order of SUNTRUST BANK , a State Bank
organized under the laws of Georgia, (“Lender”), the
principal sum of THIRTEEN MILLION SIX HUNDRED THOUSAND DOLLARS
($13,600,000.00), together with interest thereon from date until
paid according to the terms of this Note. Interest shall accrue at
a variable rate equal to the LIBOR (London Interbank Offered Rate)
plus TWO HUNDRED TWENTY SEVEN (227) basis points
(“LIBOR RATE”) which shall be quoted for a ONE MONTH
period and adjusted on the first day of each calendar month
thereafter (“Interest Rate Determination Date”) based
upon the LIBOR RATE quoted two business days prior to the 1
st
day of each
calendar month. The LIBOR RATE shall remain fixed during each month
based upon the interest rate established on the applicable Interest
Rate Determination Date. LIBOR shall mean that rate per annum
effective on any Interest Rate Determination Date which is equal to
the quotient of: i) the rate per annum equal to the offered rate
for deposits in U.S. dollars for a one (1) month period, which
rate appears on that page of Bloomberg reporting service, or such
similar service as determined by the Lender, 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 Interest Rate Determination
Date; 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 the Lender to be the rate at which U.S.
dollar deposits for the Interest Period, are offered to the Lender
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
Interest Rate Determination Date, divided by, (ii) a
percentage equal to 1.00 minus the maximum reserve
percentages (including any emergency, supplemental, special or
other marginal reserves) expressed as a decimal (rounded upward to
the next 1/100th of 1%) in effect on any day to which the Lender is
subject with respect to any LIBOR loan pursuant to regulations
issued by the Board of Governors of the Federal Reserve System with
respect to eurocurrency funding (currently referred to as
“eurocurrency liabilities” under Regulation D). This
percentage will be adjusted automatically on and as of the
effective date of any change in any reserve percentage. Interest
herein will be computed on the basis of a 360 day year and shall be
calculated for the actual number of days elapsed.
1
Principal and Interest shall be
payable in lawful money of the United States, at 777 Brickell
Avenue, Miami, Florida 33131, or at such other place as the holder
hereof may designate in writing as follows:
Commencing the
1 st day of December, 2008 and the
1 st day of each month thereafter,
until November 1, 2015 (“Maturity Date”), equal
monthly principal payments in the amount of $56,666.67 together
with accrued interest based upon the unpaid and outstanding
principal balance.
On November 1, 2015, the
Maturity Date, this Promissory Note shall mature and the entire
unpaid principal balance together with accrued interest shall be
due and payable in full.
The Maker and any endorsers,
sureties, guarantors and all others who are, or may become liable
for the payment hereof severally:
a) waive presentment for payment,
demand, notice of demand, notice of non payment, or dishonor,
protest and notice of protest of this Promissory Note, and all
other notices in connection with the delivery, acceptance,
performance, default or enforcement of the payment of this
Promissory Note.
b) waive all applicable exemption
rights, whether under the State Constitution, Homestead Laws or
otherwise, and also waive valuation and appraisement.
c) consent to all extensions of
time, renewals, postponements of time of payment of this Promissory
Note or other modifications hereof, from time to time or after the
maturity date hereof, whether by acceleration or in due course,
without notice, consent or consideration to any of the
foregoing,
d) agree to any substitution,
exchange, addition or release of any of the indebtedness evidenced
by this Promissory Note, or the addition or release of any party or
person primarily or secondarily liable hereon.
e) agree that the holder shall not
be required first to institute any suit, or to exhaust its remedies
against the undersigned maker or any other person or party liable
hereunder or against the security in order to enforce the payment
of this Note.
f) agree that notwithstanding the
occurrence of any of the foregoing (except by the express written
release by the holder or any such person), the undersigned shall be
and remain jointly and severally directly and primarily liable for
all sums due under this Promissory Note.
In addition to the payments of
principal and interest required to be paid under the terms of this
Promissory Note, if there shall be a default under the terms of
this Promissory Note, the holder shall be entitled to recover from
the Maker all of the holder’s costs of collection, including
the holder’s reasonable attorney’s fees, whether for
services incurred in collection, litigation, bankruptcy
proceedings, appeals or otherwise, and all other costs incurred in
connection therewith.
2
All payments required to be paid
under the terms of this Promissory Note shall first be applied to
costs that may be due from the maker to the holder, as aforesaid,
and then shall be applied to interest due and owing and the
remainder shall be applied to principal due and owing under the
terms hereof.
This Promissory Note is secured by a
Mortgage, Security Agreement and Assignment of Leases Rents and
Profits (“Mortgage”) dated March 19, 2001,
recorded March 21, 2001, in Official Records Book 6218 at Page
4333 of the Public Records of Orange County, Florida, and all
future amendments and modifications thereto, including that certain
Future Advance, Note and Mortgage Modification Agreement of even
date herewith. This Promissory Note is also secured by and subject
to all of the terms and conditions of other instruments executed
and delivered by the Maker to the Lender with the Mortgage as well
as those of even date herewith (all of such instruments shall be
collectively referred to as the “Related Security
Documents”) as security for and securing the indebtedness
evidenced by this Promissory Note. T