PROMISSORY NOTE
U.S. $35,600,000 July 2, 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, PELICAN STRAND, LTD., a
Florida limited partnership having its principal office at c/o Golf Communities
of America, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000 ("Borrower"), hereby promises and agrees to pay to the order of
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware limited liability
company, its successors and assigns ("Lender"), at its office at 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Maturity Date (as defined below) the
principal sum of THIRTY FIVE MILLION SIX HUNDRED THOUSAND DOLLARS ($35,600,000)
or so much thereof as shall have been advanced under the Loan Agreement (as
hereinafter defined) and shall be outstanding hereunder together with interest
thereon as hereinafter set forth, such payment to be made in lawful money of the
United States of America in immediately available funds.
1. Definitions. The following terms used in this Note
shall have the following meanings:
"Base Rate"- The rate per annum equal to four and one-half
percentage points (4.5%) in excess of the Treasury
Rate. Any interest rate based on the Base Rate
shall be adjusted as of the date of any change in
the Base Rate. The determination of the Base Rate
shall be made by Lender and shall be conclusive
and binding upon Borrower, absent manifest error.
"Borrower"- Shall have the meaning ascribed to such term in
the initial paragraph hereof. The term "Borrower"
shall include the respective successors and
assigns of Borrower, but the foregoing is not
intended to vary or negate the effect of Section
5.1 of the Loan Agreement.
"Capital Adequacy Events"- Shall have the meaning ascribed
to such term in Section 3(d) hereof.
"Cash Management Agreement"- That certain Cash
Management Agreement, dated as of the date hereof,
made by and between Borrower and Lender, with
respect to the Loan as same may be amended,
modified or extended, from time to time.
"Default Rate"- Shall have the meaning ascribed to such term in
Section 5(a) hereof.
"Domestic Business Day"- Any day except a Saturday, Sunday
or other day on which commercial banks are
required or permitted by law to close in New York
City.
"Eurodollar Business Day"- Any day on which commercial banks
are open for international business (including
dealings in dollar deposits) in London, England.
"Event of Default"- Shall have the meaning ascribed to such term
in the Loan Agreement.
"Excess Interest"- Shall have the meaning ascribed to such term in
Section 9 hereof.
"Funding Losses"- Shall have the meaning ascribed to such term in
Section 3(a) hereof.
"Funding Party"- Any bank or other entity, if any, which is
indirectly or directly funding Lender with respect
to the Loan, in whole or in part, including,
without limitation, any direct or indirect
assignee of, or participant in, the Loan.
"Governmental Authority"- Shall have the meaning ascribed to such term
in the Loan Agreement.
"Interest Accrual Period"- With respect to any Payment Date, from the
fifteenth day of the calendar month preceding such
Payment Date until the fourteenth day of current
month, provided, that no Interest Accrual Period
shall end later than the Maturity Date (other than
for purposes of calculating Default Interest), and
the initial Interest Accrual Period shall begin on
the date of this Note.
"Law Change"- Shall have the meaning ascribed to such term in
Section 12(c) hereof.
"Lender"- Shall have the meaning ascribed to such term in
the introductory paragraph hereof.
"LIBOR Interest Rate"- Shall have the meaning ascribed to such term in
Section 2(a) hereof.
"LIBOR"- With respect to the relevant Interest Accrual
Period, the rate per annum (rounded upwards, if
necessary, to the nearest one-one-thousandth
(1/1000) of one percent 1%) reported, with respect
to the initial Interest Accrual Period, at 11:00
a.m. London time on the date of this Note (or if
such date is not a Eurodollar Business Day, the
immediately preceding Eurodollar Business Day),
and thereafter, at 11:00 a.m. London time on the
date two (2) Eurodollar Business Days prior to the
first day of such Interest Accrual Period, on
Telerate Access Service Page 3750 (British Bankers
Association Settlement Rate) as the non-reserve
adjusted London Interbank Offered Rate for U.S.
dollar deposits having a 30 day term and in an
amount of $1,000,000 or more (or on such other
page as may replace Telerate Page 3750 on that
service or such other service or services as may
be nominated by the British Bankers' Association
for the purpose of displaying such rate all as
determined by Lender in its sole but good faith
discretion). In the event that (i) more than one
such LIBOR is provided, the average of such rates
shall apply or (ii) no such LIBOR is published,
then LIBOR shall be determined from such
comparable financial reporting company as Lender
in its sole but good faith discretion shall
determine. LIBOR for any Interest Accrual Period
shall be adjusted from time to time, by increasing
the rate thereof to compensate Lender and any
Funding Party for any aggregate reserve
requirements (including, without limitation, all
basic, supplemental, marginal and other reserve
requirements and taking into account any
transitional adjustments or other scheduled
changes in reserve requirements during any
Interest Accrual Period) which are required to be
maintained by Lender or such Funding Party with
respect to "Eurocurrency liabilities" (as
presently defined in Regulation D of the Board of
Governors of the Federal Reserve System) of the
same term under Regulation D, or any other
regulations of a Governmental Authority having
jurisdiction over Lender or such Funding Party of
similar effect.
"Loan"- The loan from Lender to Borrower which is
evidenced by this Note.
"Loan Agreement"- That certain Loan Agreement, dated as
of the date hereof, made by and between Borrower
and Lender, with respect to the Loan as same may
be amended, modified or extended, from time to
time.
"Loan Documents"- Shall have the meaning ascribed to such term
in the Loan Agreement.
"Loan Taxes"- Shall have the meaning ascribed to such term in
Section 12(a) hereof.
"Maturity Date"- July 1, 2001.
"Mortgage"- Shall have the meaning ascribed to such term
in the Loan Agreement.
"Net Proceeds"- The amount allocated to the Monthly Debt Service
Account under Section 3(a)(A)(vii) or Section
3(a)(B)(vii) of the Cash Management Agreement
during any Collection Period (as defined therein)
plus the amount allocated to the Monthly Debt
Service Account upon the sale of a Release Parcel
or Lot (each as defined in the Loan Agreement)
under Section 3(a)(C) thereof.
"Note"- This Promissory Note.
"Payment Date"- July 11, 1998 and the eleventh day of each
month thereafter during the term of this Note, if
the eleventh day is not a Domestic Business Day
then on the next preceding Domestic Business Day.
"Person"- Shall have the meaning ascribed to such term
in the Loan Agreement.
"Treasury Rate"- A rate per annum equal to the yield, as of the
related determination date, calculated by linear
interpolation (rounded to the nearest
one-thousandth of one percent (i.e., 0.001%)) of
the yields of noncallable United States Treasury
obligations with terms (one longer and one
shorter) most nearly approximating the period from
such determination date to the Maturity Date, as
determined in good faith by Xxxxxx on the basis of
Federal Reserve Statistical Release H.15-Selected
Interest Rates under the heading U.S. Governmental
Security/Treasury Constant Maturities, or other
recognized source of financial market information
selected by Xxxxxx.
"U.S. Person"- Any Person that is (i) a citizen or resident of
the United States, (ii) a corporation, partnership
or other entity created or organized under the
laws of the United States or any State thereof or
(iii) any estate or trust that is subject to U.S.
federal income taxation regardless of the source
of its income.
2. Interest and Principal Payments. (a) Subject to the further
provisions of this Note, including Sections 3 and 5 below, the principal amount
outstanding hereunder shall bear interest at a rate per annum (the "LIBOR
Interest Rate") equal to four and one-half percent (4.5%) in excess of LIBOR for
the relevant Interest Accrual Period.
(b) Prior to the Maturity Date (or the date the unpaid
principal balance otherwise becomes due, whether by acceleration or otherwise),
interest accruing during each Interest Accrual Period shall be payable monthly
in arrears on each Payment Date. In addition, Borrower shall pay, in reduction
of the outstanding principal amount of the Loan,
(i) on each Payment Date an amount equal to the Net
Proceeds for the preceding calendar month,
(ii) on July 1, 1999, the amount (if any) by which
the aggregate Net Proceeds paid to Lender during the preceding
twelve (12) calendar months, excluding Net Proceeds
attributable to the sale of the Property or a Release Parcel
during such period, shall be less than $5,778,765 and
(iii) on July 1, 2000, the amount (if any) by which
the aggregate Net Proceeds paid to Lender during the preceding
twenty-four (24) calendar months, excluding Net Proceeds
attributable to the sale of the Property or a Release Parcel
during such period, shall be less than $15,033,015.
The entire unpaid principal balance of this Note together with
all accrued and unpaid interest, if not sooner paid, shall be payable in full on
the Maturity Date.
(c) All interest payable hereunder shall be computed on the
basis of a 360-day year for the actual number of days elapsed. In computing the
number of days during which interest accrues, the day on which funds are
initially advanced shall be included regardless of the time of day such advance
is made, and the day on which funds are repaid shall, subject to paragraph (d)
below, be excluded. Interest shall accrue on each payment of principal hereunder
through the date on which such payment is credited, as provided below.
(d) All sums payable to Lender hereunder shall be payable,
without setoff, deduction or counterclaim, in immediately available funds, no
later than noon New York time on the date when due by wire transfer to such
account or address as Lender may from time to time designate in a written notice
to Xxxxxxxx. Payments received by Lender in immediately available funds on any
day after noon New York time shall be treated for all purposes of the Loan as
having been paid and received by Lender on the next Domestic Business Day.
Notwithstanding anything to the contrary contained herein, when any payment is
due hereunder or under any of the other Loan Documents on a day which is not a
Domestic Business Day, such payment shall be made on the next succeeding
Domestic Business Day.
3. Funding Losses; Change in Law, Etc.
(a) Borrower hereby agrees to pay to Lender any amount
necessary to compensate Lender and any Funding Party for any losses or costs
(including, without limitation, the costs of breaking any "LIBOR" contract, if
applicable, or funding losses determined on the basis of Lender's or such
Funding Party's reinvestment rate and the interest rate hereon) (collectively,
"Funding Losses") sustained by Lender or any Funding Party: (i) if this Note, or
any portion hereof, is repaid for any reason whatsoever on any date other than a
Payment Date (including, without limitation, from condemnation or insurance
proceeds, unless due to Lender's election to apply same to this Note on such
date), (ii) upon the conversion of the interest rate on the Loan to the Base
Rate in accordance with subsection (b) below, and/or (iii) as a consequence of
(x) any increased costs (without duplication of any costs used in calculating
LIBOR) that Lender or any Funding Party may sustain in maintaining the borrowing
evidenced hereby or (y) the reduction of any amounts received or receivable from
Borrower, in either case, due to the introduction of, or any change in, law or
applicable regulation or treaty (including the administration or interpretation
thereof), whether or not having the force of law, or due to the compliance by
Lender or the Funding Party, as the case may be, with any directive, whether or
not having the force of law, or request from any central bank or domestic or
foreign governmental authority, agency or instrumentality having jurisdiction.
Payment of Funding Losses hereunder shall be in addition to any obligation to
pay a prepayment premium under Section 4 hereof in circumstances where such
prepayment premium would be due and owing.
(b) If Lender determines (which determination shall be
conclusive and binding upon Borrower, absent manifest error) (i) that Dollar
deposits in an amount approximately equal to the principal balance outstanding
hereunder are not generally available at such time in the London Interbank
Market for deposits in Eurodollars, (ii) that the rate at which such deposits
are being offered will not adequately and fairly reflect the cost to Lender or a
Funding Party of maintaining a LIBOR Interest Rate on the Loan (or the portion
of the Loan being funded by such Funding Party) or of funding the same in such
market for such Interest Accrual Period due to circumstances affecting the
London Interbank Market generally, (iii) that reasonable means do not exist for
ascertaining LIBOR, or (iv) that a LIBOR Interest Rate would be in excess of the
maximum interest rate which Borrower may by law pay, then, in any such event,
Lender shall immediately notify Borrower of such circumstance and as of the date
of such notification with respect to an event described in clause (ii) or (iv)
above, or as of the expiration of the applicable Interest Accrual Period with
respect to an event described in clause (i) or (iii) above, interest shall
accrue at the Base Rate until such time as the situations described above are no
longer in effect or as otherwise provided in Section 5 hereof; provided,
however, if the situation described in clause (ii) above occurs, (x) Borrower
shall have the option, to be exercised by written notice to Lender, to pay
Lender (in the manner reasonably required by Lender) for such increased cost of
maintaining a LIBOR Interest Rate and (y) if the same only affects a portion of
the Loan, then only such portion shall have interest accrue at the Base Rate
(provided the remaining portion is at least $1,000,000) and interest shall
continue to accrue on the remaining portion at the LIBOR Interest Rate.
Notwithstanding anything to the contrary herein, with respect to an event
described in clauses (i) through (iv) above, provided that no Event of Default
shall then exist, Borrower shall have the right, on thirty (30) days prior
written notice to Lender given within thirty (30) days after Xxxxxx gives notice
to Borrower of such event, to pay the entire outstanding principal balance of
the Loan and all accrued and unpaid interest thereon on the next Payment Date
together with the Spread Maintenance Premium (as defined in the Loan Agreement)
thereon.
(c) If the introduction of, or any change in, any law,
regulation or treaty, or in the interpretation thereof by any governmental
authority charged with the administration or interpretation thereof after the
date of this Note, shall make it unlawful for Lender or any Funding Party to
maintain the LIBOR Interest Rate with respect to the Loan, or any portion
thereof, or to fund the Loan, or any portion thereof, in Eurodollars in the
London Interbank Market, then the Loan (or such portion of the Loan) shall
thereafter bear interest at the Base Rate (unless the Default Rate shall be
applicable) and Borrower shall pay to Lender the amount of Funding Losses (if
any) incurred in connection with such conversion. The accrual of interest at the
Base Rate shall continue until such Payment Date, if any, as the situation
described in this subsection (c) is no longer in effect.
(d) If Lender or the Funding Party, as the case may be, shall
have determined that the applicability of any law, rule, regulation or guideline
adopted pursuant to or arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or the
adoption of any other law, rule, regulation or guideline (including but not
limited to any United States law, rule, regulation or guideline) coming into
existence after the date of this Note regarding capital adequacy, or any change
becoming effective after the date of this Note in any of the foregoing or in the
enforcement or interpretation or administration of any of the foregoing by any
court or any domestic or foreign governmental authority, central bank or
comparable agency charged with the enforcement or interpretation or
administration thereof, or compliance by Lender or its holding company or a
Funding Party or its holding company, as the case may be, with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency (excluding, however, any
such laws, rules, regulations, and guidelines giving rise to the reserve
requirement used in calculating LIBOR), has or would have the effect of reducing
the rate of return on the capital of Lender, the Funding Party's or such Funding
Party's holding company, as the case may be, to a level below that which Lender
or its holding company or the Funding Party or its holding company, as the case
may be, could have achieved but for such applicability, adoption, change or
compliance (taking into consideration Lender's or its holding company's or the
Funding Party's or its holding company's, as the case may be, policies with
respect to capital adequacy) (the foregoing being hereinafter referred to as
"Capital Adequacy Events"), then, upon demand by Xxxxxx, Borrower shall, pay to
Lender, from time to time, such additional amount or amounts as will compensate
Lender or such Funding Party for any such reduction suffered.
(e) Any amount payable by Borrower under subsection (a) or
subsection (d) of this Section 3 shall be paid to Lender within five (5)
Business Days of receipt by Borrower of a certificate signed by an officer of
Lender setting forth the amount due and the basis for the determination of such
amount, which statement shall be conclusive and binding upon Borrower, absent
manifest error. Failure on the part of Lender to demand payment from Borrower
for any such amount attributable to any particular period shall not constitute a
waiver of Lender's right to demand payment of such amount for any subsequent or
prior period. Lender shall use reasonable efforts to deliver to Borrower prompt
notice of any event described in subsection (a) or (d) above and of the amount
to be paid under this Section 3 as a result thereof; provided, however, any
failure by Lender to so notify Borrower shall not affect Borrower's obligation
to make the payments to be made under this Section 3 as a result thereof. All
amounts which may become due and payable by Borrower in accordance with the
provisions of this Section 3 shall constitute additional interest hereunder and
shall be secured by the Mortgage and the other Loan Documents.
(f) If Lender or any Funding Party requests compensation for
any losses or costs to be reimbursed pursuant to any one or more of the
provisions of subsections (a) (iii) or (iv) or subsection (d) of this Section 4,
or if any event occurs as described in subsections (b) or (c) above which would
cause the Note no longer to bear interest at the LIBOR Interest Rate then, upon
request of Borrower, Lender or such Funding Party shall use reasonable efforts
in a manner consistent with such institution's practice in connection with loans
like the Loan to designate a different lending office for funding or booking the
Transaction Indebtedness or assign its rights and obligations under this Note to
another of its offices, branches or affiliates if such designation or assignment
in Lender's sole but good faith judgment (i) would eliminate, mitigate or reduce
amounts payable by Borrower in connection with Funding Losses or Capital
Adequacy Events or, with respect to an event described in subsection (b) or (c)
above would allow this Note to continue to bear interest at the LIBOR Interest
Rate without additional cost to Lender and (ii) would not be otherwise
prejudicial to Lender; Borrower hereby agreeing to pay all reasonably incurred
costs and expenses incurred by Lender or any Funding Party in connection with
any such designation or assignment.
4. Prepayment. Borrower expressly waives any right to prepay
this Note, in whole or in part, except as otherwise expressly provided in the
Loan Documents. Notwithstanding, anything contained in the Loan Documents to the
contrary, no prepayments will be permitted from the twelfth day of any month
through the fifteenth day of any month, unless such prepayment is accompanied by
the payment of any interest due for the next succeeding Interest Accrual Period.
5. Default Interest; Late Charge. (a)If any payment of
principal, interest or other sum payable hereunder or under any of the other
Loan Documents is not paid when due (including by reason of failure to pay all
principal, interest and all other amounts due hereunder and under the other Loan
Documents on the Maturity Date (or such earlier date as the same may become due,
whether by acceleration or otherwise)), such principal amount, interest or other
sum shall bear interest at a rate per annum (the "Default Rate") equal to five
percent (5%) in excess of the interest rate on the Loan determined in accordance
with Section 2(a) above, which Default Rate shall so apply from the date due
until the date such amount is indefeasibly paid to Lender. Without limiting the
foregoing, upon the occurrence of and during the continuance of an Event of
Default hereunder, the entire principal balance of this Note shall bear interest
at the Default Rate. Interest at the Default Rate shall be paid immediately upon
demand, which demand may be made as frequently as Lender shall elect.
(b) If any installment of interest or principal is not paid
when due, Borrower shall pay to Lender a late charge of four percent (4%) of the
amount so overdue in order to defray part of the expense incident to handling
such delinquent payment or payments. Such late charge shall be immediately due
and payable without notice or demand by Xxxxxx. Such late charge shall be in
addition to and separate from any increase in interest due hereunder as a result
of calculation of interest due hereunder at the Default Rate. Acceptance by
Xxxxxx of any late charge or interest at the Default Rate shall not be deemed a
waiver of any of Xxxxxx's rights hereunder or under the other Loan Documents
with respect to such late payment.
6. Event of Default. Upon the occurrence of an Event of
Default and at any time thereafter if any such Event of Default shall then be
continuing, Lender may, without additional notice to Borrower, declare the
principal of, and accrued interest on, this Note to be immediately due,
whereupon the same shall forthwith become immediately due and payable without
presentment, demand, protest or other notice of any kind and Lender may proceed
to exercise any rights and remedies available to Lender under the Mortgage and
the other Loan Documents or which Lender may have at law, in equity or
otherwise.
7. Expenses. Borrower hereby agrees to pay to Lender on demand
all costs and expenses of Xxxxxx (including, without limitation, reasonable
attorneys' fees and disbursements) in connection with the enforcement and
collection hereof, whether or not any suit is brought on this Note or any
foreclosure or other proceeding is brought. The provisions of this Section 7 are
not intended to limit in any manner Borrower's obligations to pay costs and
expenses of Lender as may be elsewhere provided herein, in the Loan Agreement,
in the Mortgage or in any other Loan Document.
8. Security. This Note is secured by the Mortgage, the
Assignment of Leases (as defined in the Loan Agreement) and the other Loan
Documents.
9. Excess Interest. It is agreed that, notwithstanding any
provision to the contrary in this Note, the Mortgage, or any of the other Loan
Documents, no such provision shall require the payment or permit the collection
of any amount ("Excess Interest") in excess of the maximum amount of interest
permitted by law to be charged for the use or detention, or the forbearance in
the collection, of all or any portion of the indebtedness evidenced by this
Note. If any Excess Interest is provided for, or is adjudicated to be provided
for, in this Note or any of the other Loan Documents, then in such event:
(a) the provisions of this Section 9 shall
govern and control;
(b) neither Borrower nor any of the other
Persons required to pay any amounts with respect to the Loan shall be obligated
to pay any Excess Interest;
(c) any Excess Interest that Lender may have
received hereunder shall, at the option of Xxxxxx, be (i) applied as a credit
against the then outstanding principal balance (without payment of prepayment
premium) due under this Note, accrued and unpaid interest thereon not to exceed
the maximum amount permitted by law, or both, (ii) refunded to the payor
thereof, or (iii) any combination of the foregoing;
(d) the applicable interest rate or rates shall
be automatically subject to reduction to the maximum lawful rate and this Note,
the Mortgage, and the other Loan Documents shall be deemed to have been, and
shall be, reformed and modified to reflect such reduction in such interest rate
or rates; and
(e) neither Borrower nor any of the other
Persons required to pay any amounts with respect to the Loan shall have any
action or remedy against Lender for any damages whatsoever or any defense to
enforcement of the Note, Mortgage or any of the other Loan Documents arising out
of the payment or collection of any Excess Interest.
10. Waiver. Borrower expressly waives presentment for payment,
demand, notice of demand and of dishonor and nonpayment of this Note, protest
and notice of protest, diligence in collecting, and the bringing of suit against
any other party.
11. Governing Law. THIS NOTE SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. IT IS THE INTENT OF THE
PARTIES HERETO THAT THE PROVISIONS OF SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK APPLY TO THIS NOTE.
12. Loan Taxes. (a) Any and all payments by Xxxxxxxx to Lender
hereunder and under the other Loan Documents shall, provided that Lender
complies with the requirements of subsection (c) below, be made free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings and all liabilities with respect
thereto except for the following for which Borrower shall not be responsible:
(A) taxes imposed on or measured by Xxxxxx's net income or net receipts, or (B)
franchise taxes imposed on Lender, by the jurisdiction in which (i) Lender is
organized, (ii) Lender is "doing business" (unless such determination of "doing
business" is made solely as a result of Xxxxxx's interest in the Loan and the
security therefor) or (iii) Lender's applicable lending office is located (all
such taxes, levies, imposts, deductions, charges or withholdings and liabilities
(except those described in clauses (A) and (B)) being hereinafter referred to as
"Loan Taxes"). If Borrower shall be required by law to deduct or withhold any
Loan Taxes from or in respect of any sum payable hereunder or under any other
Loan Document, then (x) any such sum payable hereunder or under any other Loan
Document shall be increased as may be necessary so that after making all
required deductions or withholdings (including deductions applicable to
additional sums payable under this Section 12), Lender receives an amount equal
to the sum it would have received had no such deductions or withholdings
(including deductions applicable to additional sums payable under this Section
12) been made, (y) Borrower shall make such deductions or withholdings and (z)
Borrower shall pay the full amount deducted or withheld to the relevant taxing
authority in accordance with applicable law. Borrower will indemnify Lender for
the full amount of any Loan Taxes (including, without limitation, any Loan Taxes
(as well as taxes described in clauses (A) and (B) above) imposed by any
jurisdiction on any amounts payable under this Section 12) paid or payable by
Lender and any liability (including, without limitation, penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Loan
Taxes were correctly or legally asserted. A certificate as to the amount of such
payment or liability delivered to Borrower by Lender shall be conclusive absent
manifest error. The agreements and obligations of Borrower contained in this
Section 12 shall survive the payment in full of principal and interest under
this Note.
(b) Within 30 days after the date of any payment
of Loan Taxes withheld by Borrower in respect of any payment to Lender, Borrower
will furnish to Lender the original or a certified copy of a receipt or other
evidence reasonably satisfactory to the Agent evidencing payment thereof.
(c) If Lender is a U.S. Person (other than the Lender
originally named herein), Lender shall deliver to Borrower upon request a Form
W-9 (unless it establishes to the reasonable satisfaction of Borrower that it is
otherwise eligible for an exemption from backup withholding tax or other
withholding tax). If Lender is not a U.S. Person, Lender shall deliver to
Borrower upon request a Form W-8 and either (i) a Form 1001 which indicates a 0%
rate of tax or (ii) a Form 4224. If Lender is not a U.S. Person, Lender further
undertakes to deliver to Borrower additional Forms W-8, 1001, 4224 (or any
successor forms) or other manner of certification, as the case may be, (i) on or
before the date that any such form expires or becomes obsolete, (ii) after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to Borrower, and (iii) such extensions or renewals thereof as
may reasonably be requested by Xxxxxxxx, certifying that Xxxxxx is entitled to
receive payments hereunder without deduction or withholding of any Loan Taxes.
However, in the event that any change in law, rule, regulation, treaty or
directive, or in the interpretation or application thereof (a "Law Change"), has
occurred after the date hereof and prior to the date on which any delivery
pursuant to the preceding sentence would otherwise be required which renders
such form inapplicable, or which would prevent Lender from duly completing and
delivering any such form or if such Law Change results in Lender being unable to
deliver a Form W-9 (or other satisfactory evidence that it is otherwise eligible
for an exemption from backup withholding tax or other withholding tax), Lender
shall not be obligated to deliver such forms but shall, promptly following such
Law Change, but in any event prior to the time the next payment hereunder is due
following such Law Change, advise Borrower in writing whether it is capable of
receiving payments without any deduction or withholding of Loan Taxes. In the
event of such Law Change, the Borrower shall have the obligation to make the
Lender whole and to "gross-up" under Section 12(a) despite the failure by the
Lender to deliver such forms.
(d) If Xxxxxx receives a refund in respect of Loan
Taxes paid by Borrower, it shall promptly pay such refund, together with any
other amounts paid by Borrower pursuant to subsection (a). above in connection
with such refunded Loan Taxes, to Borrower; provided, however, that Xxxxxxxx
agrees to promptly return such refund to Lender if it receives notice from
Lender that it is required to repay such refund. Nothing contained herein shall
be construed to require Lender to seek any refund and Lender shall have no
obligation to Borrower to do so.
(e) All amounts payable under this Section 12 shall
constitute additional interest hereunder and shall be secured by the Mortgage
and the other Loan Documents. The provisions of this Section 12 shall survive
any payment or prepayment of this Note and any foreclosure or satisfaction of
the Mortgage.
(f) Any reference under this Section 12 to "Lender"
shall be deemed to include any participants and assignees.
13. Modification, etc. This Note can be extended, modified or
amended only in writing by an instrument executed by Xxxxxx and Xxxxxxxx and
none of the rights or benefits of Lender hereunder can be waived except in a
written document executed by Xxxxxx.
14. Binding Effect. This Note shall be binding upon and inure
to the benefit of Xxxxxx, Xxxxxxxx and their respective successors and assigns.
15. Notices. All notices and other communications hereunder
shall be delivered as set forth in Section 7.6 of the Loan Agreement.
16. Interpretation. The headings of sections and paragraphs in
this Note are for convenience only and shall not be construed in any way to
limit or define the content, scope, or intent of the provisions hereof. As used
in this Note, the singular shall include the plural, and masculine, feminine,
and neuter pronouns shall be fully interchangeable, where the context so
requires. The parties hereto intend and believe that each provision in this Note
comports with all applicable law. However, if any provision in this Note is
found by a court of law to be in violation of any applicable law, and if such
court should declare such provision of this Note to be unlawful, void or
unenforceable as written, then it is the intent of all parties to the fullest
possible extent that it is legal, valid and enforceable, that the remainder of
this Note shall be construed as if such unlawful, void or unenforceable
provision were not contained therein, and that the rights, obligations and
interests of Borrower and Lender under the remainder of this Note shall continue
in full force and effect; provided, however, that if any provision of this Note
which is found to be in violation of any applicable law concerning the
imposition of interest hereunder, the rights, obligations and interests of
Xxxxxxxx and Lender with respect to the imposition of interest hereunder shall
be governed and controlled by the provisions of Section 9 hereof. Time is of the
essence of this Note.
17. Limited Recourse. The provisions of Section 7.20 of the
Loan Agreement shall apply to Borrower's obligations under this Note and are
incorporated herein as if fully set forth herein.
18. No Oral Agreements. THIS NOTE AND THE OTHER LOAN DOCUMENTS
EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY
AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDER-STANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OR PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
IN WITNESS WHEREOF, the undersigned has duly executed this
Note as of the day and year first above written.
BORROWER:
PELICAN STRAND, LTD.,
a Florida limited partnership
By: Pelican Strand Development Corporation,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: President
