ALL DOCUMENTARY
STAMP TAX DUE ON THIS FUTURE ADVANCE PROMISSORY NOTE HAS BEEN PAID
IN CONNECTION WITH THAT CERTAIN NOTICE OF FUTURE ADVANCE AND FIFTH
AMENDED AND RESTATED MORTGAGE, SECURITY AGREEMENT AND FIXTURE
FILING OF EVEN DATE HEREWITH.
FUTURE ADVANCE PROMISSORY
NOTE
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U.S.
$2,500,000.00
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Tampa, Florida
March 12, 2009
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WHEREAS ,
this Future Advance Promissory Note (this “Note”
) is a future advance under that certain Promissory Note (the
“Original Note” ) dated November 1, 2004,
from the undersigned Borrower payable to the order of SUNTRUST
BAN K, a Georgia banking corporation (hereinafter called
“Bank” , which term shall include all subsequent
holders of this Note by assignment or otherwise), in the original
principal amount of $12,000.000.00;
AND
WHEREAS , upon execution of this Note, Borrower shall execute
on even date herewith a Consolidated, Amended and Restated
Promissory Note (the “Consolidation Note” ) in
favor of Bank, which shall provide for the consolidation of
(i) the indebtedness under this Future Advance Note with
(ii) the outstanding indebtedness under the Original Note. The
terms of repayment of the indebtedness hereunder shall be in
accordance with the terms as specified in the Consolidation
Note.
NOW,
THEREFORE , the undersigned Borrower promises to pay to Bank,
or order, the sum of Two Million Five Hundred Thousand and
No/100ths Dollars ($2,500,000.00), together with interest from the
date hereof at the respective rate 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 “Interest Rate” means two and
one-half percent (2.50%) per annum above One Month LIBOR-Indexed
Rate (as hereinafter defined). The term “One Month
LIBOR-Indexed 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 for a one (1) month 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 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 Bank to be the rate at which U.S. dollar deposits for
the Interest Period 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 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 1/100 th of
1%) in effect on any day to which Bank 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.
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.
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 first (1st) Business Day of each calendar month
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.
Interest hereunder
shall be computed on the basis of a three hundred sixty
(360) day year, calculated for the actual number of days
elapsed, provided, however, that the Interest Rate charged
hereunder shall never exceed the maximum rate allowed, from time to
time, by applicable law.
Monthly payments
of principal and interest at the applicable Interest Rate pursuant
to the foregoing provisions of this Note shall be due and payable
as provided in the Consolidation Note.
The
“Maturity Date” of this Note shall be
March 12, 2014. Notwithstanding any contrary provision of this
Note, all amounts then outstanding under this Note, if not sooner
paid, shall be due and pay
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