Exhibit 10.8
PROMISSORY NOTE
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U.S. $14,850,000.00 As of December 29, 2005
FOR VALUE RECEIVED, TIERRA DEL SOL RESORT (PHASE 2), LTD., a Florida
limited partnership, TDS TOWN HOMES (PHASE 2), LLC, a Florida limited liability
company, COSTA XXXXXX XX REAL ESTATE, LLC, a Florida limited liability company,
XXXXX XXXXXX III REAL ESTATE, LLC, a Florida limited liability company, and TDS
CLUBHOUSE, INC., a Florida corporation, each having an address at 0000 Xxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000 (collectively, "Maker"), hereby promises to pay to
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the order of KEYBANK NATIONAL ASSOCIATION, a national banking association
("Payee") having an address at 000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
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Xxxxxxx 00000, the principal sum of FOURTEEN MILLION EIGHT HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($14,850,000.00) or so much thereof as may be
advanced from time to time, and interest from the date hereof on the balance of
principal from time to time outstanding, in United States currency, at the rates
and at the times hereinafter described.
This Note is issued by Maker pursuant to that certain Loan Agreement of
even date herewith (the "Loan Agreement") entered into between Payee and Maker.
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This Note evidences the Loan (as defined in the Loan Agreement). Payment of this
Note is governed by the Loan Agreement, the terms of which are incorporated
herein by express reference as if fully set forth herein. Capitalized terms used
and not otherwise defined herein shall have the meanings given to them in the
Loan Agreement.
1. INTEREST. The principal amount hereof outstanding from time to time
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shall bear interest until paid in full at the Applicable Rate.
2. MONTHLY PAYMENTS. Interest only shall be payable in arrears on the 5th
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Business Day of each calendar month after the date hereof up to and including
the Maturity Date in the amount of all interest accrued during the immediately
preceding calendar month. All payments on account of the indebtedness evidenced
by this Note shall be made to Payee not later than 12:00 P.m. Orlando, Florida
time on the day when due in lawful money of the United States and shall be first
applied to late charges, costs of collection or enforcement and other similar
amounts due, if any, under this Note and any of the other Loan Documents, then
to interest due and payable hereunder and the remainder to principal due and
payable hereunder.
3. MATURITY DATE. The indebtedness evidenced hereby shall mature on the
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Maturity Date. On the Maturity Date, the entire outstanding principal balance
hereof, together with accrued and unpaid interest and all other sums evidenced
by this Note, shall, if not sooner paid, become due and payable.
4. GENERAL PROVISIONS.
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(a) Regardless of whether an Adjusted LIBOR Rate would otherwise then
be in effect, in the event (i) the principal balance hereof is not paid
when due whether by acceleration or upon the Maturity Date or (ii) an Event
of Default exists, then the principal balance hereof shall bear interest
from and after the Default Rate. In addition, for any installment
(exclusive of the payment due upon the Maturity Date) which is not paid on
the due date thereof a late charge as set forth in the Loan Agreement.
(b) Maker agrees that the obligation evidenced by this Note is an
exempt transaction under the Truth-in-Lending Act, 15 U.S.C. Sec. 1601, et
seq.
(c) The parties hereto intend and believe that each provision in this
Note comports with all applicable local, state and federal laws and
judicial decisions. However, if any provision or provisions, or if any
portion of any provision or provisions, in this Note is found by a court of
law to be in violation of any applicable local, state or federal ordinance,
statute, law, administrative or judicial decision, or public policy, and if
such court should declare such portion, provision or provisions of this
Note to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they
are legal, valid and enforceable, that the remainder of this Note shall be
construed as if such illegal, invalid, unlawful, void or unenforceable
portion, provision or provisions were not contained therein, and that the
rights, obligations and interest of Maker and the holder or holders hereof
under the remainder of this Note shall continue in full force and effect.
All agreements herein are expressly limited so that in no contingency or
event whatsoever, whether by reason of advancement of the proceeds hereof,
acceleration of maturity of the unpaid principal balance hereof, or
otherwise, shall the amount paid or agreed to be paid to the holders hereof
for the use, forbearance or detention of the money to be advanced hereunder
exceed the highest lawful rate permissible under applicable usury laws. If,
from any circumstances whatsoever, the fulfillment of any provision hereof,
at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a court of
competent jurisdiction may deem applicable hereto, then, ipso facto, the
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obligation to be fulfilled shall be reduced to the limit of such validity
and if from any circumstance the holder hereof shall ever receive as
interest an amount which would exceed the highest lawful rate, such amount
which would be excessive interest shall be applied to the reduction of the
unpaid principal balance due hereunder and not to the payment of interest.
(d) This Note and all provisions hereof shall be binding upon Maker
and all persons claiming under or through Maker, and shall inure to the
benefit of Xxxxx, together with its successors and assigns, including each
owner and holder from time to time of this Note.
(e) Time is of the essence as to all dates set forth herein.
(f) Maker agrees that its liability shall not be in any manner
affected by any indulgence, extension of time, renewal, waiver, or
modification granted or consented to by Payee; and Maker consents to any
indulgences and all extensions of time, renewals, waivers, or modifications
that may be granted by Payee with respect to the payment or other
provisions of this Note, and to any substitution, exchange or release of
the collateral, or any part thereof, with or without substitution, and
agrees to the addition or release of any makers, endorsers, guarantors, or
sureties, all whether primarily or secondarily liable, without notice to
Maker and without affecting its liability hereunder.
(g) Maker hereby waives and renounces for itself, its successors and
assigns, all rights to the benefits of any statute of limitations and any
moratorium, reinstatement, marshalling, forbearance, valuation, stay,
extension, redemption, appraisement, or exemption and homestead laws now
provided, or which may hereafter be provided, by the laws of the United
States and of any state thereof against the enforcement and collection of
the obligations evidenced by this Note.
(h) If this Note is placed in the hands of attorneys for collection or
is collected through any legal proceedings, Maker promises and agrees to
pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note,
including all reasonable attorneys' fees and disbursements.
(i) All parties now or hereafter liable with respect to this Note,
whether Maker, principal, surety, guarantor, endorsee or otherwise hereby
severally waive presentment for payment, demand, notice of nonpayment or
dishonor, protest and notice of protest. No failure to accelerate the
indebtedness evidenced hereby, acceptance of a past due installment
following the expiration of any cure period provided by this Note, any Loan
Document or applicable law, or indulgences granted from time to time shall
be construed (i) as a novation of this Note or as a reinstatement of the
indebtedness evidenced hereby or as a waiver of such right of acceleration
or of the right of Payee thereafter to insist upon strict compliance with
the terms of this Note, or (ii) to prevent the exercise of such right of
acceleration or any other right granted hereunder or by the laws of the
State. Maker hereby expressly waives the benefit of any statute or rule of
law or equity now provided, or which may hereafter be provided, which would
produce a result contrary to or in conflict with the foregoing.
(j) THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF FLORIDA AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA.
[SIGNATURE PAGE FOLLOWS]
Maker has delivered this Note as of the day and year first set forth above.
MAKER:
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TIERRA DEL SOL RESORT (PHASE 2), LTD.,
a Florida limited partnership
By: TDS MANAGEMENT, LLC, a Florida limited
liability company, its general partner
By:/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, its Manager
TDS TOWN HOMES (PHASE 2), LLC, a
Florida limited liability company
By: TIERRA DEL SOL RESORT (PHASE 2), LTD.,
a Florida limited partnership, its manager
By: TDS MANAGEMENT LLC, a Florida
limited liability company, its
general partner
By:/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, its Manager
COSTA XXXXXX XX REAL ESTATE, LLC,
a Florida limited liability company
By: TIERRA DEL SOL RESORT (PHASE 2), LTD.,
a Florida limited partnership, its manager
By: TDS MANAGEMENT LLC, a Florida
limited liability company, its
general partner
By:/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, its Manager
XXXXX XXXXXX III REAL ESTATE, LLC,
a Florida limited liability company
By: TIERRA DEL SOL RESORT (PHASE 2),
LTD., a Florida limited partnership,
its manager
By: TDS MANAGEMENT LLC, a Florida
limited liability company, its
general partner
By:/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, its Manager
TDS CLUBHOUSE, INC., A FLORIDA CORPORATION
By:/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
