EXHIBIT 10.34.3
PROMISSORY NOTE
(Name of Lender)
$_____________________.00 April 27, 2005
FOR VALUE RECEIVED, GRANDE PALMS, L.L.C., a Delaware limited liability company
("Borrower," whether one or more) hereby promises to pay to the order of
________________________________(one of the "Lenders") under that certain Loan
Agreement (defined below) among Borrower, Bank of America, N.A., a national
banking association (together with any and all of its successors and assigns,
the "Administrative Agent") as agent for the benefit of the Lenders from time to
time a party to that certain Construction Loan Agreement (the "Loan Agreement")
dated of even date herewith, without offset, in immediately available funds in
lawful money of the United States of America, at the Administrative Agent's
Office as defined in the Loan Agreement, the principal sum of
_________________________________________________and NO/00 DOLLARS
($_______________________________.00) (or the unpaid balance of all principal
advanced against this Note, if that amount is less), together with interest on
the unpaid principal balance of this Note from day to day outstanding as
hereinafter provided.
1. Note; Interest; Payment Schedule and Maturity Date. This Note is one
of the Notes referred to in Loan Agreement and is entitled to the benefits
thereof and subject to prepayment in whole or part as provided therein. The
entire principal balance of this Note then unpaid shall be due and payable at
the times as set forth in the Loan Agreement. Accrued unpaid interest shall be
due and payable at the times and at the interest rate as set forth in the Loan
Agreement until all principal and accrued interest owing on this Note shall have
been fully paid and satisfied. Any amount not paid when due and payable
hereunder shall, to the extent permitted by applicable law, bear interest and if
applicable a late charge as set forth in the Loan Agreement.
2. Security; Loan Documents. The security for this Note includes a
Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing
(which, as it may have been or may be amended, restated, modified or
supplemented from time to time, is herein called the "Mortgage") dated of even
date herewith from Borrower to Administrative Agent and Lenders, covering
certain property in Horry County, South Carolina described therein (the
"Property"). This Note, the Mortgage, the Loan Agreement and all other documents
now or hereafter securing, guaranteeing or executed in connection with the loan
evidenced by this Note (the "Loan"), are, as the same have been or may be
amended, restated, modified or supplemented from time to time, herein sometimes
called individually a "Loan Document" and together the "Loan Documents."
3. Defaults.
(a) It shall be a default ("Default") under this Note and each of
the other Loan Documents if (1) any principal, interest or other amount of money
due under this Note is not paid in full when due, regardless of how such amount
may have become due; (ii) any covenant,
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agreement, condition, representation or warranty herein or in any other Loan
Documents is not fully and timely performed, observed or kept; or (iii) there
shall occur any default or event of default under the Mortgage or any other Loan
Document. Upon the occurrence of a Default, Administrative Agent on behalf of
the Lenders shall have the rights to declare the unpaid principal balance and
accrued but unpaid interest on this Note, and all other amounts due hereunder
and under the other Loan Documents, at once due and payable (and upon such
declaration, the same shall be at once due and payable), to foreclose any liens
and security interests securing payment hereof and to exercise any of its other
rights, powers and remedies under this Note, under any other Loan Document, or
at law or in equity.
(b) All of the rights, remedies, powers and privileges (together,
"Rights") of Administrative Agent on behalf of the Lenders provided for in this
Note and in any other Loan Document are cumulative of each other and of any and
all other Rights at law or in equity. The resort to any Right shall not prevent
the concurrent or subsequent employment of any other appropriate Right. No
single or partial exercise of any Right shall exhaust it, or preclude any other
or further exercise thereof, and every Right may be exercised at any time and
from time to time. No failure by Administrative Agent or Lenders to exercise,
nor delay in exercising any Right, including but not limited to the right to
accelerate the maturity of this Note, shall be construed as a waiver of any
Default or as a waiver of any Right. Without limiting the generality of the
foregoing provisions, the acceptance by Lender from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the right of Administrative Agent
or Lenders to accelerate the maturity of this Note or to exercise any other
Right at the time or at any subsequent time, or nullify any prior exercise of
any such Right, or (ii) constitute a waiver of the requirement of punctual
payment and performance or a novation in any respect.
(c) If any holder of this Note retains an attorney in connection
with any Default or at maturity or to collect, enforce or defend this Note or
any other Loan Document in any lawsuit or in any probate, reorganization,
bankruptcy, arbitration or other proceeding, or if Borrower sues any holder in
connection with this Note or any other Loan Document and does not prevail, then
Borrower agrees to pay to each such holder, in addition to principal, interest
and any other sums owing to Lenders hereunder and under the other Loan
Documents, all costs and expenses incurred by such holder in trying to collect
this Note or in any such suit or proceeding, including, without limitation,
attorneys' fees and expenses, investigation costs and all court costs, whether
or not suit is filed hereon, whether before or after the Maturity Date, or
whether in connection with bankruptcy, insolvency or appeal, or whether
collection is made against Borrower or Guarantor or endorser or any other person
primarily or secondarily liable hereunder.
4. Heirs, Successors and Assigns. The terms of this Note and of the
other Loan Documents shall bind and inure to the benefit of the heirs, devisees,
representatives, successors and assigns of the parties. The foregoing sentence
shall not be construed to permit Borrower to assign the Loan except as otherwise
permitted under the Loan Documents. As further provided in the Loan Agreement, a
Lender may, at any time, sell, transfer, or assign all or a portion of its
interest in this Note, the Mortgage and the other Loan Documents, as set forth
in the Loan Agreement.
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5. General Provisions. Time is of the essence with respect to Borrower's
obligations under this Note. If more than one person or entity executes this
Note as Borrower, all of said parties shall be jointly and severally liable for
payment of the indebtedness evidenced hereby. Borrower, endorsers, and any other
party now or hereafter liable for the payment of this Note in whole or in part,
hereby severally (a) waive demand, presentment for payment, notice of dishonor
and of nonpayment, protest, notice of protest, notice of intent to accelerate,
notice of acceleration and all other notices (except any notices which are
specifically required by this Note or any other Loan Document), filing of suit
and diligence in collecting this Note or enforcing any of the security herefor;
(b) agree to any substitution, subordination, exchange or release of any such
security or the release of any party primarily or secondarily liable hereon; (c)
agree that neither Administrative Agent nor any Lender shall be required first
to institute suit or exhaust its remedies hereon against Borrower or others
liable or to become liable hereon or to perfect or enforce its rights against
them or any security herefor; (d) consent to any extensions or postponements of
time of payment of this Note for any period or periods of time and to any
partial payments, before or after maturity, and to any other indulgences with
respect hereto, without notice thereof to any of them; and (e) submit (and waive
all rights to object) to non-exclusive personal jurisdiction of any state or
federal court sitting in the city and county, and venue in the city or county,
in which payment is to be made as specified in Section 1 of this Note, for the
enforcement of any and all obligations under this Note and the Loan Documents;
(f) waive the benefit of all homestead and similar exemptions as to this Note;
(g) agree that their liability under this Note shall not be affected or impaired
by any determination that any security interest or lien taken by Lender to
secure this Note is invalid or unperfected; and (h) hereby subordinate any and
all rights against Borrower and any of the security for the payment of this
Note, whether by subrogation, agreement or otherwise, until this Note is paid in
full. A determination that any provision of this Note is unenforceable or
invalid shall not affect the enforceability or validity of any other provision
and the determination that the application of any provision of this Note to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances. This Note may not be amended except in a writing specifically
intended for such purpose and executed by the party against whom enforcement of
the amendment is sought. Captions and headings in this Note are for convenience
only and shall be disregarded in construing it. THIS NOTE, AND ITS VALIDITY,
ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY SOUTH CAROLINA LAW (WITHOUT
REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL
LAW.
6. Notices. Any notice, request, or demand to or upon Borrower or Lender
shall be deemed to have been properly given or made when delivered in accordance
with the Loan Agreement.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, Borrower has duly executed this Note under seal as of
the date first above written.
BORROWER:
GRANDE PALMS, L.L.C., a Delaware limited
liability company
By: ________________________________(SEAL)
Name: ______________________________
Title: _____________________________
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