Promissory Note - Levitt Corp. and BankAtlantic Bancorp. Inc.
ALL DOCUMENTARY STAMPS HAVE BEEN PAID ON THIS NOTE
PROMISSORY NOTE
$8,000,000 AS OF DECEMBER 30, 2003
FOR VALUE RECEIVED, the undersigned LEVITT CORPORATION, a Florida
corporation ("BORROWER") promises to pay to the order of BANKATLANTIC BANCORP,
INC., a Florida corporation (the "LENDER"), in immediately available funds, the
sum of EIGHT MILLION DOLLARS, ($8,000,000), together with interest thereon on
the unpaid principal amount from time to time outstanding at the Interest Rate
(as such term is defined herein). The Borrower may repay and prepay, the
principal amount hereof at any time prior to the Maturity Date (as such term is
defined herein), without penalty or premium.
All amounts due hereunder shall be payable in lawful currency of the
United States of America to Lender at 1750 East Sunrise Boulevard, Fort
Lauderdale, Florida 33304, or at such other place in the United States as the
Lender may designate in writing prior to the due date of such payment hereunder.
Until the Maturity Date (as defined herein), whether by acceleration or
otherwise, interest on the unpaid principal balance of this Note from time to
time outstanding shall be payable monthly on the first day of each month,
starting on the first day of the month following the month in which this Note is
signed. This Note shall mature and the principal balance hereunder, together
with all accrued and unpaid interest thereon, shall become due and payable on
December 30, 2008 (the "MATURITY DATE"). Payments received under this Note shall
be applied first to accrued and unpaid interest, and the balance, if any, to
principal. Borrower may prepay this Note in whole or in part without penalty or
premium.
Interest shall be determined for each day by multiplying a daily
interest factor (based on the Interest Rate then in effect divided by 360) by
the unpaid principal balance outstanding for such day. Interest shall be
calculated and accrue on each Advance (as defined herein) of the principal of
this Note from and including the day on which such Advance is made.
For purposes of this Note, the term "INTEREST RATE" shall mean the
annual prime rate of interest, as published in the Southeast Edition of THE WALL
STREET JOURNAL ("PRIME RATE" and if a range of interest rates is so published,
the mid point of such range) with each change in the Prime Rate as so published
being given effect in the daily calculation of interest hereunder PLUS the
Escalating Spread. As used herein, the "ESCALATING SPREAD" shall mean the
following schedule of interest premiums that shall be added to the Prime Rate in
calculating the Interest Rate hereunder:
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Period Escalating Spread
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Commencing June 30, 2004 0%
Commencing December 30, 2004 0.25%, p.a.
Commencing June 30, 2005 0.50%, p.a.
Commencing December 30, 2005 0.75%, p.a.
Commencing June 30, 2006 1.00%, p.a.
Commencing December 30, 2006 1.25%, p.a.
Commencing June 30, 2007 1.50%, p.a.
Commencing December 30, 2007 1.75%, p.a.
Commencing June 30, 2008 2.00%, p.a.
Commencing December 30, 2008 2.25%, p.a.
The Interest Rate shall be computed and adjusted as of the date of any
change in the Prime Rate; PROVIDED, HOWEVER, that the Interest Rate shall never
exceed the maximum rate allowed by applicable law. Lender shall invoice Borrower
setting forth the interest due for each month at least five (5) days in advance
of the payment date.
Nothing herein contained, nor in any instrument or transaction related
hereto, shall be construed or so operate as to require the Borrower, or any
person liable for the payment of the loan made pursuant to this Note, to pay
interest in an amount or at a rate greater than the highest rate permissible
under applicable law. Should any interest or other charges paid by the Borrower,
or any parties liable for the payment of the loan made pursuant to this Note,
result in the computation or earning of interest in excess of the highest rate
permissible under applicable law, then any and all such excess shall be and the
same is hereby waived by the holder hereof, and all such excess shall be
automatically credited against and in reduction of the principal balance, and
any portion of said excess which exceeds the principal balance shall be paid by
the holder hereof to the Borrower any parties liable for the payment of the loan
made pursuant to this Note, it being the intent of the parties hereto that under
no circumstances shall the Borrower, or any parties liable for the payment of
the loan hereunder, be required to pay interest in excess of the highest rate
permissible. This paragraph shall never be superseded or waived unless by
written document executed by Lender and Borrower, expressly declaring the
interest rate limitations and usury disclaimers in this Note to be null and
void, and no other method or language shall be effective to supersede or waive
this paragraph.
Borrower shall pay the cost of all revenue tax, stamp tax, intangibles
tax or other tax (other than taxes on Lender's net income or Lender's franchise
taxes) previously, now or hereafter required by law at any time to be paid or
affixed to this Note or any other agreements or documents relating hereto or
executed in connection herewith. And, if any tax is now or hereafter imposed
with respect to notes of the nature of this Note or debts of the nature of the
obligations evidenced by this Note, Borrower agrees to pay to the Lender hereof
upon demand the amount of such tax, together with any late charges, interest,
fines or penalties, and Borrower hereby waives any contrary provision of any law
or rule of court now or hereafter in effect. Borrower indemnifies Lender and
holds the Lender harmless from any such taxes, penalties, late charges, or fines
as may actually be or become due and payable; such indemnity to survive final
payment of the monetary obligations evidenced by this Note.
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Borrower covenants and agrees for the benefit of Lender as follows:
(a) Borrower will keep in good standing, free from default (not
cured within applicable cure periods) its obligations under
its primary institutional borrowing arrangements, including
amounts presently owed to Ohio Savings Bank, a federal savings
bank (the "BANK DEBT");
(b) Except in connection with the Bank Debt (or any refinancing
thereof), for liens on taxes not yet due and otherwise arising
by operation of law or in the ordinary course of business, and
as the Lender may consent, Borrower shall not create or suffer
to exist any material liens or encumbrances upon any of
Borrower's assets;
(c) Borrower will not cause or permit its dissolution, nor shall
Borrower reorganize, consolidate with or merge into any other
person or permit any other person to consolidate with or merge
into it without the prior written consent of Lender;
(d) Borrower shall not, without the prior written consent of
Lender, sell or transfer any material assets outside of the
ordinary course of its business, including but not limited to,
sales or transfers of its operating subsidiaries, unless such
sales or transfers are consummated on an arm's length basis.
This Note is subordinate to Borrower's obligations under that certain
loan agreement between Borrower and Ohio Savings Bank, a federal savings bank
("OSB"), dated as of September 15, 2000, all as more fully set forth in that
certain subordination and standstill agreement among Lender, Borrower and OSB of
even date herewith, as amended from time to time (the "SUBORDINATION
AGREEMENT"), the terms of which are incorporated into this Note in their
entirety by this reference.
Each of following events shall constitute an event of default (an
"EVENT OF DEFAULT") hereunder:
(a) If Borrower shall fail to pay when due any interest or
principal or any other sum payable to Lender hereunder, and
such failure shall continue unremedied for ten (10) days after
Borrower's receipt from Lender of written notice of such Event
of Default; or
(b) If Borrower shall fail or neglect to perform, keep or observe,
or shall default with respect to any covenant with Lender
which default is not cured within thirty (30) days after
written notice, provided if same cannot be reasonably be cured
within thirty (30) days and Borrower commences to cure within
thirty (30) days and proceeds diligently to complete the cure,
such cure period shall be extended to the earlier of actual
cure or one hundred twenty (120) calendar days; or
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(c) If a final judgment for the payment of money in excess of
$1,000,000 shall be rendered against the Borrower and the same
shall remain undischarged for a period of thirty (30) days
during which execution shall not be effectively stayed, unless
such judgment is fully covered by collectible insurance; or
(d) Borrower shall: (i) make an assignment for the benefit of
creditors, file a petition in bankruptcy, petition or apply to
any tribunal for the appointment of a custodian, receiver or
any trustee, for a substantial part of any of its properties
or assets, or shall commence any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute, whether now or
hereafter in effect; or if there shall have been filed any
such petition or application, or any such proceeding shall
have been commenced against Borrower in which an order for
relief is entered or which is not dismissed within thirty (30)
days after entry of the order for relief; or if Borrower by
any act or omission shall indicate its consent to, approval of
or fail to timely object to any such petition, application or
proceeding or order for relief or the appointment of a
custodian, receiver, or any trustee for Borrower or any
substantial part of any of its properties or assets, or shall
suffer any such custodianship, receivership or trusteeship to
continue undischarged for a period of thirty (30) days or
more; (ii) generally not pay its debts as such debts become
due or admit in writing its inability to pay its debts as they
mature; or (iii) be "insolvent," as such term is defined in
section 101 of title 11 of the United States Code.
Upon the occurrence of any Event of Default, (a) all amounts of
principal and/or interest and other sums due under this Note shall bear interest
from the day when due until such amount is paid in full at the "DEFAULT RATE".
As used herein, the "DEFAULT RATE" shall mean the Prime Rate plus five
percentage points (5%) per annum; PROVIDED, HOWEVER, the Default Rate shall in
no event exceed the maximum rate permitted by applicable law; (b) the entire
unpaid principal amount of this Note and all unpaid interest accrued thereon
shall, at the sole option of Lender upon notice to Borrower, become immediately
due and payable; PROVIDED, HOWEVER, that upon the occurrence of an Event of
Default specified in section (c), above, principal and interest on this Note
shall become automatically due and payable without declaration, notice or demand
by Lender; (c) Lender shall have the right to offset all amounts owed by
Borrower hereunder against any amounts owed by Lender in any capacity to
Borrower, whether or not due; and (d) Lender shall thereupon have the immediate
right to exercise from time to time all rights and remedies now or hereafter
available at law or in equity, including, if applicable, the rights of a secured
party under the Uniform Commercial Code, all of which shall be cumulative in
nature.
Except as expressly set forth herein, Borrower, sureties, guarantors,
and endorsers of this Note, jointly and severally, do hereby waive presentment
for payment, demand, protest, notice of dishonor, diligence, collection and
protest, and do each hereby waive notice of and consent to any and all
extensions and renewals of this Note, or the release of all or any part of the
any security that may be pledged for the payment of the Note, or release of any
party liable for payment of this Note, from time to time, without notice, and
hereby waive any and all notices and defenses of whatsoever kind and nature and
waive the exhaustion of legal remedies hereon.
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Borrower hereby agrees to pay to Lender all costs of collecting or
attempting to collect this Note or protecting, defending, or enforcing such
rights, including, without limitation, court costs and reasonable attorneys'
fees, in addition to all principal, interest and other amounts payable under
this Note.
Any failure by Lender to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right at
any time. No amendment to or modification of this Note shall be binding upon
Lender unless in writing and signed by it. Any provision hereof found to be
illegal, invalid, or unenforceable for any reason whatsoever shall not affect
the legality, validity, or enforceability of the remainder hereof. This Note
shall apply to and bind the successors of Borrower and shall inure to the
benefit of Lender, its successors and assigns; PROVIDED, HOWEVER, that Borrower
may not assign its rights and obligations under this Note without the express
prior written consent of Lender.
Borrower represents and warrants to Lender (a) that the execution,
delivery and performance of this Note: (i) has been duly authorized by all
necessary acts and proceedings, corporate or otherwise, and (ii) does not
violate, conflict with, or result in a violation or breach of the organizational
documents of the Borrower, or any law, regulation, judgment, order, writ,
agreement or understanding which is binding upon Borrower or its assets; and (b)
this Note is the valid, legal and binding obligation of the Borrower,
enforceable against Borrower in accordance with its terms.
LENDER AND BORROWER 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, ANY OTHER
DOCUMENTS ASSOCIATED WITH THE ADVANCES MADE HEREUNDER, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL INDUCMENT FOR THE LENDER EXTENDING CREDIT TO
BORROWER.
The Note shall be governed by and interpreted in accordance with the
laws of the State of Florida.
IN WITNESS WHEREOF, Borrower, by its duly authorized officer
intending to be legally bound hereby, has caused this Note to be duly executed
and delivered effective as of December 30, 2003.
LEVITT CORPORATION
By: _____________________________
Its: _____________________________
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