1
Exhibit 10.06
NORTHERN TRUST BANK OF FLORIDA, N.A.
CONSOLIDATED
PROMISSORY NOTE
1050094452 Note Number
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Miami Florida
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$ 500,000.00 (*) January 13, , 1998
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FOR VALUE RECEIVED, the undersigned, and if more than one, each of them
jointly and severally (hereinafter individually and collectively called
"Maker"), promises to pay to the order of Northern Trust Bank of Florida, N.A.
(hereinafter, together with any subsequent holder hereof, called the "BANK" or
"HOLDER"), at its office at 8600 N.W. 17 Street, Miami, FL 33126 .
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or at such other place as HOLDER may from time to time designate, the principal
sum of Five Hundred Thousand Dollars and 00/100--------------($500,000.00)
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dollars with interest thereon from the date hereof at:
[X] An annual rate of interest equal to the BANK's Prime Rate (as
hereinafter defined) plus three quarters of one (3/4%) percent per annum.
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"Prime Rate" means the interest rate (but not necessarily the best or lowest
rate charged borrowing customers of BANK), published or announced by BANK from
time to time as its Prime Rate. The interest rate charged shall change with each
change in the BANK's Prime Rate, such interest rate to be adjusted on any day of
the month on which any change in said Prime Rate becomes effective; or
[ ] A fixed simple interest rate of _______________________________(____%)
percent per annum.
PRINCIPAL SHALL BE DUE AND PAYABLE AS FOLLOWS (CHECK ONE):
[ ] In_____consecutive____________________________installments, commencing
______________________________, 19__.
each in the amount of $______________________, with a final principal payment in
the amount of $____________________being due and payable in full on ____________
_______________________, 19__.
[ ] ON DEMAND
[ ] ON DEMAND; however, if demand is not sooner made, then all
outstanding principal hereunder shall be due and payable in full on
_________________________, 19__.
[X] On July 31, 1998 .
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[ ] Pursuant to the terms and conditions of that certain
___________________________________________ dated ________________________,
executed by and between MAKER and BANK.
[ ] Other (describe)_____________________________________________________.
INTEREST SHALL BE DUE AND PAYABLE AS FOLLOWS (CHECK ONE):
[X] Monthly, commencing on February 28, 1998, computed on the outstanding
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principal balance from time to time remaining, with all accrued and unpaid
interest being due and payable in full with the final principal due hereunder.
[ ] Quarterly, commencing on __________________________________, 19__,
computed on the outstanding principal balance from time to time remaining, with
all accrued and unpaid interest being due and payable in full with the final
principal payment due hereunder.
[ ] On _________________________________, 19__.
[ ] Pursuant to the terms and conditions of that certain
________________________________________ dated ________________________________,
executed by and between MAKER and BANK.
[ ] Other (describe)_____________________________________________________.
If this Note is captioned "MASTER PROMISSORY NOTE" then, so long as no
Event of Default has occurred hereunder, MAKER may borrow, repay and reborrow
up to the principal amount of this Note.
Interest hereunder shall be calculated on the basis of a 360 day year and
shall be charged only on the sums advanced from the date of advance to the date
of repayment. MAKER hereof does not intend or expect to pay, nor does BANK
intend or expect to charge, accept or collect any interest which, when added
to any commitment fee or any other charge upon the principal, shall be in
excess of the highest lawful rate. Should acceleration, prepayment or any other
charges upon the principal or any portion thereof result in the computation or
earning of interest in excess of the highest lawful rate allowable under the
law, then any and all such excess is hereby waived and shall be applied against
the remaining principal balance. Without limiting the generality of the
foregoing, and notwithstanding anything to the contrary contained herein or
otherwise, no deposit of funds shall be required in connection with this loan in
an amount which will, when deducted from the principal amount outstanding
hereunder, cause the rate of interest hereunder to exceed the highest rate
permitted by applicable law. All payments received hereunder shall be applied
first to accrued interest and then to principal; however, in the event of
any default hereunder, the BANK may, in its sole discretion, and in such order
as it may choose, apply any payment to interest, principal, and/or lawful
charges and expenses then accrued.
MAKER acknowledges that all accrued interest not paid when due shall be
deemed to be an addition to the principal balance of this Note and such amount,
together with any principal payment then due and unpaid, shall bear interest at
the contract rate of this Note from such date to the earlier of the date paid or
to maturity of this Note, whether by its terms or acceleration and thereafter at
the Default Rate (as hereinafter defined). MAKER further agrees that if any
installment of principal or interest is not made within ten (10) calendar days
of its due date, BANK shall have the right to charge and collect from MAKER a
late charge equal to five (5%) percent of the amount of such payment.
BANK's failure to collect or decision to waive delinquent interest or any
late charge shall not constitute a waiver of any subsequent right to collect
such delinquent interest and late charge.
If any payment of principal or interest or other sum due hereunder is not
made in full when due or if there occurs an Event of Default (as hereinafter
defined), the entire unpaid principal balance, together with, accrued interest
and all other sums due hereunder, shall at the option of the BANK become
immediately due and payable without notice. Failure to exercise the option
shall not constitute a waiver of the BANK's right to exercise such option.
AFTER MATURITY OF THIS NOTE, WHETHER BY THE TERMS HEREOF OR BY THE BANK
EXERCISING ITS RIGHTS TO ACCELERATE THIS NOTE, INTEREST SHALL ACCRUE ON THE
PRINCIPAL BALANCE OUTSTANDING AT THE HIGHEST LAWFUL RATE OF INTEREST BUT NOT
IN EXCESS OF TWENTY-FIVE PERCENT (25%) PER ANNUM (the "DEFAULT RATE").
As security, for the payment of this Note, and any renewals, extensions or
modifications hereof, and any other liabilities of the MAKER to the BANK,
however or whenever created, MAKER hereby grants to the BANK a security
interest in the following:
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**NONE**
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Including, all proceeds thereof and rights arising in connection therewith. If
"NONE" is inserted in this space, then this Note is secured only by the
property described in the next succeeding paragraph.
Additionally, as security for the payment of this Note, including any
renewals, extensions or modifications hereof as well as any other liabilities of
MAKER to BANK, however or whenever created, MAKER hereby pledges to BANK and
grants to BANK a security interest in any and all property of MAKER now or
hereafter delivered to or left in or coming into possession, control or custody
of BANK, in any capacity whatsoever, including, without limitation, cash, stock
and other dividends, any balance or share of any deposit, trust or agency
account and all rights to subscribed for securities incident to, declared, or
granted in connection with such property, and property described in collateral
receipts or other documents signed or furnished by the MAKER, and any and all
replacements of any of the foregoing, whether or not in the possession of BANK.
All of the property securing MAKER's liabilities to the BANK will hereafter be
referred to as the "Collateral".
The Collateral shall serve as security for all liabilities, whether
primary, secondary, direct, contingent, absolute, sole, joint or several, due or
to become due, now existing or hereafter acquired or created, of each MAKER
(including each MAKER and any other person executing this Note) to BANK, whether
such liabilities arise in the ordinary course of business or not. It is
expressly agreed that if the Collateral for this Note or any portion thereof is
real estate, all covenants, conditions and agreements contained in the mortgage
encumbering the real estate are hereby incorporated herein by reference and a
default thereunder is default under this Note. It is further agreed that if a
separate security agreement is executed by MAKER in conjunction with this Note,
all covenants, conditions and agreements contained in the security agreement
are incorporated herein by reference and a default thereunder is a default
under this Note. The BANK may continue to hold any pledged property deposited
hereunder after the payment of this Note, if at the time of the payment and
discharge hereof any of the parties liable for the payment hereof shall be then
directly or contingently liable to the BANK as maker, endorser, surety or
guarantor of any other note, draft, bill of exchange, or other instrument, or
otherwise, and the BANK may thereafter exercise the rights with respect to said
pledged property granted herein even though this Note shall have been
surrendered to the MAKER.
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Each MAKER jointly and severally covenants and agrees with BANK as follows:
1. At any time and from time to time BANK may accept additions to,
releases, reductions, exchanges or substitutions for the Collateral, as well as
payments on account of the loan evidenced by this Note or increases of such loan
or other loans which are secured in whole or in part by the Collateral, without
in any way altering, impairing, diminishing or affecting the provisions of this
Note or BANK's rights hereunder and with respect to the Collateral and without
in any way altering, impairing, diminishing or affecting the liabilities of
MAKER. BANK shall exercise reasonable care in the custody and preservation of
the Collateral, however, the BANK shall have no responsibility for ascertaining
any maturities, calls, conversions, exchanges, offers, tenders or similar
matters relating to any of the Collateral nor for informing the undersigned with
respect to any thereof. BANK shall not be bound to take any steps necessary to
preserve any rights in the Collateral against prior parties, and MAKER shall
take all necessary steps for such purposes. Neither BANK nor its nominee shall
be obligated to collect dividends or interest on or principal of any Collateral
or give any notice with respect to it.
2. BANK shall have, but shall not be limited to, the following rights,
each of which may be exercised at any time and from time to time whether or not
this Note is due: (a) to pledge or transfer this Note and the Collateral, and
thereafter be relieved of all duties and responsibilities and relieved from any
and all liability with respect to any pledged or transferred Collateral and any
pledgee or transferee shall for all purposes stand in the place of BANK
hereunder and have all the rights of BANK hereunder; (b) to transfer the whole
or any part of the pledged Collateral into the name of itself or its nominee;
(c) to notify the MAKER to make payment to BANK of any amounts due or to become
due on any Collateral and hold all payments received as additional Collateral
and upon an occurrence of an Event of Default apply it on the principal or
interest hereon or on any liabilities secured hereby; (d) to demand, sue for,
collect, or make any compromise or settlement it deems desirable with reference
to the Collateral; and (e) to take possession or control of any proceeds of the
Collateral.
3. If any one or more of the following Events of Default ("Events of
Default") shall occur for any reason whatsoever (and whether such occurrences
shall be voluntary or involuntary, or come about or be effected by operation of
law or pursuant to or in compliance with any judgment, decree or order of any
court, or any order, rule or regulation of any administrative or governmental
body), that is to say: (a) failure of MAKER to perform any agreement hereunder
or to pay in full, when due, any liability whatsoever to BANK or any installment
or principal or interest on this Note; (b) the death of MAKER; (c) the
Collateral or any portion thereof shall at any time decline in value or
otherwise become unsatisfactory to BANK; (d) BANK shall at any time deem itself
insecure; (e) MAKER shall (i) apply for or consent to the appointment of a
receiver; trustee in bankruptcy for benefit or creditors, or liquidator of it or
any of its property; (ii) admit in writing its inability to pay its debts as
they mature or generally fail to pay its debt as they mature; (iii) make a
general assignment for the benefit of creditors; (iv) be adjudicated a bankrupt
or insolvent; (v) file a voluntary petition in bankruptcy, or a petition or an
answer seeking reorganization or an arrangement with creditors, or seeking to
take advantage of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute or an answer admitting an act of
bankruptcy alleged in a petition filed against it in any proceeding under any
such law; (vi) take any action for the purpose of affecting any of the
foregoing; or (vii) if any order, judgement or decree shall be entered against
MAKER by any court of competent jurisdiction, approving a petition seeking its
reorganization or appointing a receiver, trustee or liquidator of MAKER, or of
all or a substantial part of the assets of MAKER, and such order, judgement or
decree shall continue unstayed and in effect for a period of thirty (30)
calender days from the date of entry thereof; (f) the entry of any judgment
against MAKER not otherwise provided for in (e)(vii) above; (g) the issuing of
any attachments or garnishment, or the filing of any lien, against the
Collateral or any property of MAKER; (h) the taking of possession of any
substantial part of the Collateral or property of MAKER at the instance of any
governmental authority; (i) the dissolution, merger, consolidation or
reorganization of MAKER; (j) failure of MAKER to remain in good standing under
the laws of its state of organization or failure to remain authorized to do
business in each jurisdiction where such authorization is required; (k) the
determined by BANK that a material adverse change has occurred in the financial
condition of MAKER from the conditions set forth in the most recent financial
statement of MAKER heretofore furnish to BANK, or from the condition of MAKER as
heretofore most recently disclosed to BANK in any manner; or that any warranty,
representation, certificate of statement of MAKER to BANK (whether contained in
this Note or not) proves untrue; (1) the further granting by MAKER of a security
interest in any of the Collateral without the written consent of BANK or
determination of a security interest in the Collateral or any portion thereof
which is not otherwise acceptable to BANK or which is superior to that of
BANK's; (m) failure to do all things necessary to preserve and maintain the
value and collectibility of the Collateral, including, but not limited to, the
payment of taxes and premiums on policies of insurance on the due date thereof
without the benefit of the grace period; (n) failure of MAKER, after request by
BANK, to furnish financial information or to permit inspection of the MAKER's
books and records, which failure shall continue uncured for ten (10) calendar
days after notice of such default from BANK to MAKER: (o) any guarantor shall
default upon its guaranty of this Note or if such guaranty ceases to be in full
force and effect or shall be declared to be null and void or the validity
thereof shall be contested by any guarantor of this Note: (p) the occurrence of
any default or event of default, or any event which might become such with
notice or the passage of time or both, or any similar event which requires the
prepayment by MAKER of borrowed money or the acceleration of the maturity
thereof; (q) any material adverse change in the financial condition of MAKER;
(r) the suspension or revocation of any permit or license, the absence of which
would have a material adverse effect on the business of MAKER; or (s) any
defaults under any mortgage, security agreement or any other document or
instrument executed by MAKER in connection with this Note or the Collateral.
Then, in every such Event of Default, BANK shall have all the remedies of a
creditor, mortgagee and secured party under the Uniform Commercial Code and
other laws of the State of Florida, and without limiting the generality of the
foregoing, BANK shall have the right, at its option, and without notice or
demand, to declare the entire amount of this Note remaining unpaid, and all
other liabilities of MAKER or any of such liabilities selected by BANK,
immediately due and payable. Additionally, upon the occurrence of an Event of
Default, BANK shall be entitled to setoff against this Note all money owed by
BANK in any capacity to MAKER, whether or not due, and also to setoff against
all other liabilities of MAKER to BANK all money owned by BANK in any capacity
to MAKER. Unless the Collateral is perishable or threatens to decline speedily
in value or is of a type customarily sold on a recognized market, BANK will give
MAKER reasonable notice of the time and place of any public sale thereof or of
the time after which a private sale will be held. The requirement of reasonable
notice shall be met if such notice is mailed, postage prepaid, to MAKER at the
address shown on the records of the BANK, at least seven (7) calendar days
before the time of the sale. Upon disposition of any Collateral after the
occurrence of any default hereunder, MAKER shall be and remain jointly and
severally liable for any deficiency, and BANK shall account to MAKER for any
surplus, but BANK shall have the right to apply all or any part of such surplus
(or to hold the same as a reserve) against any and all other liabilities of
MAKER to BANK.
4. No delay or omission on the part of BANK in exercising any right
hereunder shall operate as a waiver of such right or any right under this Note.
No waiver shall be binding on BANK, unless in a writing signed by an authorized
BANK officer, and then only to the extent specifically set forth therein.
5. MAKER hereby expressly consents to any and all extensions and renewals,
in whole or in part, and all delays in time or payment or other performance
which the BANK may grant or permit at any time and from time to time without
limitation, and without any notice to or further consent of MAKER. MAKER gives
the BANK full authority, without notice or consent, in BANK's sole discretion
to: (a) grant time, waivers and other indulgences in respect hereto; (b) vary,
exchange, release or discharge, wholly or partially, or delay in or abstain from
perfecting its security interest in and enforcing its rights against any of the
Collateral which the BANK now has or acquires after the date hereof; (c) accept
partial payments from MAKER; (d) release or discharge, wholly or partially,
MAKER, any guarantor or any person or entity liable for repayment of the
indebtedness evidenced by this Note (hereinafter individually and collectively
called OBLIGOR); and (e) make a settlement with any OBLIGOR for less than the
aggregate amount of this Note and thereafter release such OBLIGOR from liability
hereunder without releasing any other OBLIGOR. No action or inaction by BANK
shall discharge any party liable for the payment hereof, and the liability of
all such parties shall continue until actual payment is received by the BANK.
The release or discharge of any OBLIGOR shall not discharge any other OBLIGOR,
and the release or impairment of Collateral, the taking of a renewal note for
part or all of the indebtedness hereunder or a change in the interest rate shall
not discharge any OBLIGOR. MAKER further waives any defense to enforcement of
this Note because of BANK's failure to preserve, perfect or continue perfection
of any security interest now or hereafter held by BANK, or BANK's failure to
claim or make any claim in any insolvency proceeding involving MAKER or any
OBLIGOR.
6. The BANK is hereby authorized by MAKER without notice to any of them to
date this Note as of the day when the first disbursement of the loan evidenced
hereby is made and to fill in any blank spaces herein to conform to the terms
upon which the loan evidenced hereby is made.
7. All payments of principal and interest on this Note are payable in
lawful money of the United States of America in immediately available funds
without deduction for or on account of any present or future taxes, duties or
other charges levied or imposed on this Note or the proceeds, BANK or MAKER
hereof by any government, or any instrumentality, authority or political
subdivision thereof. MAKER shall receive immediate credit on payments received
during BANK's normal business hours if made in immediately available funds'
otherwise said payments shall be credited after clearance through normal banking
channels. If any payment required to be made pursuant to this Note is not
received on the due date. BANK shall have the right, at its election, to charge
any of MAKER's accounts at the BANK, with the amount of such payment subject to
availability of collected balances. MAKER agrees upon the request of BANK to pay
all such taxes, duties and other charges in addition to principal and interest
on this Note including all documentary stamp taxes and intangible taxes as are
from time to time payable or assessed on this Note, but exclusive of United
States income taxes and Florida income taxes.
8. The BANK's rights hereunder and under any other security agreement,
mortgage or other writing or under applicable law shall be cumulative. BANK at
is option may make subsequent advances evidenced by this Note, in which event
this Note shall remain valid and enforceable notwithstanding partial or total
payment, re-borrowing, or repayment of sums hereunder.
9. Each MAKER shall furnish BANK such financial information as BANK may
from time to time reasonably request and shall permit reasonable inspection of
it's books and records during regular business hours.
10. MAKER hereby waives any plea of jurisdiction or venue as not being a
resident of the County, Florida, where suit is instituted and hereby
specifically authorizes any action brought upon the enforcement of this Note by
BANK to be instituted and prosecuted in either the Circuit Court of any County,
in the State of Florida, or any United States District Court situated in the
State of Florida, at the election of BANK. Except as otherwise specifically
provided with respect to the calculation of interest, this Note shall be
governed as to validity, interpretation, construction, effect and all other
respects by the laws and decisions of the State of Florida. Presentment, demand,
protest and notice of dishonor, are hereby waived by MAKER. MAKER, jointly and
severally, promises and agrees to pay all costs of collection of this Note
including attorney's fees and costs of the greater of (a) ten (10%) percent of
the principal and accrued interest due under this Note if the BANK proceeds to
collect this Note through the services of an attorney at law or by legal action,
plus reasonable attorney's fees incurred in appellate proceedings, or (b)
reasonable attorney's fees plus costs incurred in enforcing this Note and
recovery of all amounts owing by MAKER to BANK, whether or not suit is
instituted including in trial, on appeal, in bankruptcy proceedings or
otherwise.
11. All nouns and pronouns contained in this instrument shall mean and
include the plural as well as the singular, and the masculine, feminine, and
neuter gender whenever and whenever the context so admits or requires.
12. BANK AND MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK MAKING THE
LOAN OR EXTENSION OF CREDIT EVIDENCED BY THIS NOTE.
13. ADDITIONAL PROVISIONS: U.S. Leasing, Inc.
Address 1111 Kane Concourse, Suite 301 By: /s/ ROBERT NEW
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Bay Harbour Islands, FL 33154 Robert New, President
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This note consolidates an existing indebtedness i/a/o $250,000 plus an increase
of $250,000 as evidenced by Promissory Notes executed by Borrower on December 9,
1997 and January 12, 1998.
Amount of Documentary, Stamps
Required on this Note $ Affixed to original notes.
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