THIRD AMENDED AND RESTATED
REVOLVING LINE OF CREDIT PROMISSORY NOTE
THIS NOTE
AMENDS AND RESTATES THAT CERTAIN REVOLVING LINE OF CREDIT
PROMISSORY NOTE DATED NOVEMBER 1, 2004, IN THE ORIGINAL PRINCIPAL
AMOUNT OF $5,000,000.00 GIVEN BY BORROWER IN FAVOR OF BANK (THE
“ORIGINAL NOTE”), AS AMENDED BY THAT CERTAIN AMENDED
AND RESTATED REVOLVING LINE OF CREDIT PROMISSORY NOTE DATED JANUARY
31, 2007, IN THE ORIGINAL PRINCIPAL AMOUNT OF $5,000,000 GIVEN BY
BORROWER IN FAVOR OF BANK (THE “FIRST AMENDED NOTE”),
AND AS MODIFIED BY THOSE CERTAIN LETTER AGREEMENTS DATED FEBRUARY
20, 2008, FEBRUARY 28, 2008, MAY 19, 2008, AND AUGUST 12, 2008
(COLLECTIVELY, THE “LETTER AGREEMENTS”), AND AS FURTHER
AMENDED BY THAT CETAIN SECOND AMENDED AND RESTATED REVOLVING LINE
OF CREDIT PROMISSORY NOTE DATED NOVEMBER 6, 2008, IN THE ORIGINAL
PRINCIPAL AMOUNT OF $5,000,000.00 GIVEN BY BORROWER IN FAVOR OF
BANK (THE “SECOND AMENDED NOTE”) (THE ORIGINAL NOTE,
TOGETHER WITH THE FIRST AMENDED NOTE AND THE LETTER AGREEMENTS AND
THE SECOND AMENDED NOTE SHALL BE COLLECTIVELY REFERRED TO HEREIN AS
THE “EXISTING NOTE”). THE PRINCIPAL BALANCE OUTSTANDING
UNDER THE EXISTING NOTE AS OF THE DATE HEREOF IS $2,500,000.00.
THIS NOTE IS BEING EXECUTED BY BORROWER AND DELIVERED TO BANK IN
SUBSTITUTION FOR THE EXISTING NOTE AND NOT IN PAYMENT, SATISFACTION
OR CANCELLATION OF THE OUTSTANDING INDEBTEDNESS EVIDENCED BY THE
EXISTING NOTE. NO ADDITIONAL DOCUMENTARY STAMP TAXES OR
NON-RECURRING INTANGIBLES TAXES ARE DUE IN CONNECTION WITH THE
EXECUTION OF THIS NOTE.
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Tampa, Florida
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U.S.
$2,500,000.00
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March 12, 2009
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The undersigned
Borrower promises to pay to the order of SUNTRUST BANK , a
Georgia banking corporation (hereinafter called
“Bank” , which term shall include all subsequent
holders of this Note by assignment or otherwise), at its offices
located in Tampa, Florida, or order, the sum of TWO MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ( $2,500,000.00 ),
or so much thereof as may be advanced by Bank hereunder, together
with interest as required under this Note. Sums shall be advanced
to Borrower by Bank hereunder pursuant to the terms and conditions
of that certain Loan Agreement of even date herewith, by and
between Bank and Borrower. The outstanding principal amount due
hereunder may fluctuate up and down from time to time, but shall
not exceed Two Million Five Hundred Thousand and 00/100ths United
States Dollars ($2,500,000.00) in the aggregate principal amount
outstanding at any one time.
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
consisting of accrued interest at the applicable Interest Rate
pursuant to the foregoing provisions of this Note shall be due and
payable beginning on April 1, 2009, and continuing on
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