EXHIBIT 10.96
PROMISSORY NOTE
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$1,175,000 November 26, 1997
FOR VALUE RECEIVED, INCO HOMES CORPORATION, a Delaware corporation
("Borrower"), whose address is 0000 Xxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxxxx
00000, promises to pay to those parties listed on Exhibit A-1 attached hereto
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("Holder"), or order, c/o USA Commercial Mortgage Company, Inc. at 0000 Xxxxxxxx
Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, or at such other place as Holder may
from time to time in writing designate, in lawful money of the United States of
America, the principal sum of ONE MILLION ONE HUNDRED SEVENTY FIVE THOUSAND
DOLLARS ($1,175,000) or such greater or lesser sum as may be outstanding
pursuant to this Note, the Construction Loan Agreement dated as of even date
herewith between Borrower and Holder ("Loan Agreement'), the Deed of Trust (as
defined below) and the other Loan Documents (as defined below), together with
interest on the principal balance outstanding from time to time ("Principal
Balance"), in like money, from the date of this Note until fully repaid at the
rates hereinafter set forth.
1. DEFINITIONS. As used herein, the terms "Borrower," "Holder,"
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"Loan Agreement" and "Principal Balance" have the meanings assigned in the
preceding paragraph, and the following terms have the following meanings:
(A) "DEED OF TRUST" shall mean the Construction Deed of Trust,
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Security Agreement, Assignment of Leases and Rents and Fixture Filing, dated as
of even date with this Note, from Borrower to the trustee specified therein, in
trust for Holder, covering certain real and personal property described therein
situated in La Quinta, Riverside County, California, as the same may be amended
or otherwise modified.
(B) "EVENT OF DEFAULT" has the meaning assigned to such term
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in the Deed of Trust.
(C) "HOME" OR "HOMES" means the 34 single-family home lots,
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as well as all improvements to be constructed thereon, located in La Quinta,
Riverside County, California that constitute a part of the Mortgaged Property.
(D) "INTEREST RATE" means a rate per annum equal to twelve
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and one-quarter of one percent (12 1/4%).
(E) "LOAN DOCUMENTS" has the meaning assigned to such term
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in the Deed of Trust.
(F) "MATURITY DATE" means the date which occurs twelve (12)
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months after the date hereof.
(G) "MORTGAGED PROPERTY" has the meaning assigned to such
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term in the Deed of Trust.
(H) "RELEASE PRICE" for any Home means an amount equal to
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$34,560.
2. INTEREST RATE. From the date of this Note to and including
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the date the entire Principal Balance is paid in full, the Principal Balance
shall bear interest at the Interest Rate. Interest shall be calculated based on
the actual days the Principal Balance is outstanding hereunder divided by 360
days and multiplied by the Interest Rate.
3. PAYMENT OF PRINCIPAL AND INTEREST. From the date hereof to
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and including the date the entire Principal Balance is paid in full, the
Principal Balance and interest thereon shall be due and payable as
follows:
(A) Borrower shall make monthly payments of interest only
owing on the Principal Balance, in arrears, commencing on the first day of the
calendar month immediately following the date hereof and continuing on the first
day of each succeeding month to and including the first day of the month in
which the Maturity Date occurs. Any interest that has accrued but is not paid as
required under this Note shall be compounded and added to the Principal Balance
on the first day following the date such interest was required to be paid.
(B) Each time Borrower obtains a construction loan to finance
the construction of Homes, it shall cause the construction lender to pay
directly to Holder, at the closing of such construction loan, an amount equal to
the Release Price for each of the Homes covered by the construction loan.
(C) On the Maturity Date, Borrower shall make a final payment
that shall include the unpaid portion of the Principal Balance, any interest
accrued and unpaid thereon, and any and all other sums due under this Note, the
Loan Agreement, the Deed of Trust and the Loan Documents.
At the closing of the loan evidenced by this Note, the net loan
proceeds (after disbursement of fees and closing costs approved by Holder) shall
be deposited in a construction control account established by Builder's Control
Service Company ("Builder's Control") for the benefit of Borrower. Builder's
Control shall serve as the construction control agent for Holder, and shall
disburse funds from the construction control account to pay interest owing under
this Note and to fund the loan evidenced by this Note as provided in the Loan
Agreement and an Escrow and Security Agreement.
4. APPLICATION OF PAYMENTS. Each payment received by Holder from
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Borrower with respect to this Note shall be applied: First: to the payment of
the costs and expenses of taking possession of, holding, maintaining and selling
any collateral for this Note; Second: to the payment of attorneys' fees and
expenses incurred in connection with the collection of this Note and enforcement
against any collateral for this Note; Third: to the payment of all amounts
advanced under the Loan Agreement, the Deed of Trust or the Loan Documents
(other than the Indemnity Agreement, as defined in the Deed of Trust) to
preserve the value of the Mortgaged Property; Fourth: to the payment of late
charges and accrued interest due and payable hereunder; Fifth: to reduction of
the Principal Balance; Sixth: to the payment of any amounts owing to Holder or
any other parties under the Indemnity Agreement; and the balance, if any, shall
be paid to the parties entitled to receive it; or in such other order or
proportion as Holder, in Xxxxxx's sole discretion, may determine. Payments
shall be deemed made when Xxxxxx has received, at Holder's address or at such
other address as Holder shall provide written notice of to Borrower, immediately
available funds in lawful money of the United States of America.
BORROWER UNDERSTANDS THAT THIS NOTE IS NOT SELF-AMORTIZING AND
THAT A SUBSTANTIAL BALLOON PAYMENT MAY BE DUE ON THE MATURITY DATE.
5. PREPAYMENT. Borrower may prepay all or any portion of the
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Principal Balance at any time without premium on at least thirty (30) days prior
written notice to Holder.
6. MAXIMUM RATE OF INTEREST. Notwithstanding any provision in
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this Note, the total liability for payments of interest and payments in the
nature of interest, including without limitation, all charges, fees or any sums
which may at any time be deemed to be interest, shall not exceed the amount
which Holder may lawfully collect. In the event the total liability for
payments of interest and payments in the nature of interest, including without
limitation, all charges, fees or other sums which may at any time be deemed to
be interest, shall, for any reason whatsoever, result in an effective rate of
interest, which for any month or other interest payment period exceeds the
amount which Holder may lawfully collect, all sums in excess of those lawfully
collectible as interest for the period in question shall, without further notice
to any party hereto, be applied as a premium-free reduction of the Principal
Balance immediately upon receipt of such sums by Xxxxxx, with the same force and
effect as though Borrower had specifically designated such excess sums to be so
applied to the reduction of the Principal Balance; provided, however, that
Holder may, at any time, and from time to time, elect, by notice in writing to
Borrower, to waive, reduce or limit the collection of any sums (or refund to
Borrower any sums collected) in excess of those lawfully collectible as interest
rather than accept such sums on prepayment of the Principal Balance.
7. SECURITY. Payment of this Note is secured by the Deed of
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Trust and the Loan Documents. All of the agreements, conditions, covenants,
provisions and stipulations contained in the Loan Agreement, the Deed of Trust
and the Loan Documents which are to be kept and performed by Borrower are hereby
made a part of this Note to the same extent and with the same force and effect
as if they were fully set forth herein, and Borrower covenants and agrees to
keep and perform them, or cause them to be kept and performed, strictly in
accordance with their terms.
8. LATE CHARGES. Time is of the essence hereof and if any amount
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owing under this Note is not paid within five (5) days of when due, Borrower
shall pay to Holder a late charge payment equal to five percent (5%) of such
amount. Borrower recognizes that a default by Xxxxxxxx in making the payments
agreed to be paid when due will result in Xxxxxx's incurring additional expenses
in servicing the loan evidenced by this Note, including, but not limited to
sending out notices of delinquency, computing interest, and segregating the
delinquent sums from not delinquent sums on all accounting, loan and data
processing records, in loss to Holder of the use of the money due, and in
frustration to Holder in meetings its other financial commitments, but that it
is extremely difficult and impractical to ascertain the extent of such damages.
Xxxxxxxx therefore agrees that a sum equal to $0.05 for each $1.00 of each
payment that is not paid five (5) days after its due date, is a reasonable
estimate of the fair average compensation for the loss and damages Holder will
suffer, that such amount shall be presumed to be the amount of damages sustained
by Xxxxxx in such case, and that Borrower agrees to pay Holder this sum on
demand. Such late charge shall be paid without prejudice to the right of Holder
to collect any other amounts provided to be paid or to declare a default under
this Note, the Loan Agreement, the Deed of Trust or Loan Documents.
9. DEFAULT INTEREST. Time is of the essence hereof and, from
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and after the Maturity Date or five days after the occurrence of an Event of
Default, all amounts owing under this Note and the Loan Documents shall bear
interest at a rate per annum equal to seventeen and one-quarter of one percent
(17 1/4%) (the "Default Rate"), instead of at the Interest Rate. If the
Default Rate is triggered as a result of an Event of Default and Xxxxxxxx
subsequently cures the Event of Default, then all amounts owing hereunder will
resume bearing interest at the Interest Rate, rather than the Default Rate, on
the date the Event of Default is cured; provided, however, that the interest
owing hereunder may again accrue at the Default Rate upon the occurrence of a
subsequent Event of Default. Borrower recognizes that a default by Xxxxxxxx in
making the payments agreed to be paid when due will result in damage to Holder,
including loss to Holder of the use of the money due and frustration to Holder
in meetings its other financial commitments, but that it is extremely difficult
and impractical to ascertain the extent of such damages. Xxxxxxxx therefore
agrees that the Default Rate is a reasonable estimate of the loss and damages
Holder will suffer, that such amount shall be presumed to be the amount of
damages sustained by Holder in such case, and that Xxxxxxxx agrees to pay Holder
this sum on demand. Interest at the Default Rate shall be paid without
prejudice to the right of Holder to collect any other amounts provided to be
paid or to declare a default under this Note, the Loan Agreement, the Deed of
Trust or Loan Documents.
10. DEFAULT. Upon the occurrence of any Event of Default,
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Holder, at its option and without further notice, demand, or presentment for
payment to Borrower or others, may declare immediately due and payable the
unpaid Principal Balance and interest accrued thereon together with all other
sums owed by Borrower under this Note, the Loan Agreement, the Deed of Trust and
the Loan Documents (including, but not limited to attorneys' fees as provided in
Section 12 below), anything in this Note, the Loan Agreement, the Deed of Trust
and the Loan Documents to the contrary notwithstanding. Payment of such sums
may be enforced and recovered in whole or in part at any time by one or more of
the remedies provided to Holder in this Note, the Loan Agreement, the Deed of
Trust and the Loan Documents.
11. REMEDIES CUMULATIVE. The remedies of Holder, as provided in
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this Note, the Loan Agreement, the Deed of Trust and the Loan Documents, shall
be cumulative and concurrent and may be pursued singly, successively or
together, at the sole discretion of Holder, and may be exercised as often as
occasion therefor shall occur; and the failure to exercise any such right or
remedy shall in no event be construed as a waiver or release thereof.
12. ATTORNEYS' FEES. In the event that suit be brought hereon,
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or an attorney be employed or expenses be incurred to compel payment of this
Note or any portion of the indebtedness evidenced hereby, or to defend the
priority of the Deed of Trust or to otherwise interpret or enforce any of the
terms of this Note, the Deed of Trust, the Loan Agreement or any of the other
Loan Documents, Borrower promises to pay all such attorneys' fees, costs and
expenses all as actually incurred by Xxxxxx as a result thereof including,
without limitation, (a) attorneys' fees, costs and expenses incurred in
appellate proceedings or in any action or participation in, or in connection
with, any case or proceeding under Chapters 7 or 11 of the Bankruptcy Code or
any successor thereto, and (b) attorneys' fees, costs and expenses incurred as a
result of Holder exercising its rights to cure any Event of Default by Borrower
under this Note, the Loan Agreement, the Deed of Trust or any other Related
Document, or as a result of the foreclosure of the Deed of Trust, deed in lieu
thereof, or trustee's sale thereunder.
13. WAIVER OF NOTICE. Borrower waives diligence, presentment for
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payment, demand, notice of demand, notice of nonpayment or dishonor, protest and
notice of protest of this Note, and all other notices in connection with the
delivery, acceptance, performance, default, or enforcement of the payment of
this Note, except such notices as are provided in the Deed of Trust. Borrower
further waives all right of offset that it may now have or hereafter become
entitled to with respect to any Holder.
14. WAIVER. Holder shall not be deemed, by any act of omission
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or commission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by Xxxxxx, and then only to the extent
specifically set forth in the writing. The acceptance by Holder of any payment
hereunder which is less than payment in full of all amounts due and payable at
the time of such payment shall not constitute a waiver of the right to exercise
any of the foregoing options at that time or at any subsequent time or nullify
any prior exercise of any such option without the express consent of Holder,
except as and to the extent otherwise provided by law. A waiver with reference
to one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
15. GOVERNING LAW. This instrument shall be governed by and
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construed according to the laws of the State of California.
16. CONSTRUCTION OF CERTAIN TERMS. Whenever used, the singular
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shall include the plural, the plural shall include the singular, and the words
"Holder" and "Borrower" shall be deemed to include their respective heirs,
administrators, executors, successors and assigns.
17. NOTICE. All notices which Holder or Borrower may be required
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or permitted to give hereunder shall be made in the same manner as set forth in
Section 9.3 of the Deed of Trust.
18. SEVERABILITY OF PROVISIONS. In the event any one or more of
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the provisions hereof shall be invalid, illegal or unenforceable in any respect,
the validity of the remaining provisions hereof shall be in no way affected,
prejudiced or disturbed thereby.
19. SALE OF INTEREST. Borrower acknowledges that Holder may, in
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its sole discretion, sell all or any part of its interest in the loan as
evidenced by this Note and, in connection therewith, Holder may assign all or
any portion of this Note. Any such sale and assignment may be at a discount or
premium, subject to a brokerage fee or involve a servicing agreement, and shall
not alter any of Borrower's obligations hereunder or under any of the Loan
Documents.
20. ACCELERATION UPON TRANSFER. Sections 5.1.18 and 6.9 of the
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Deed of Trust provide as follows:
"5.1.18 TRANSFER OF MORTGAGED PROPERTY. Trustor shall not,
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without the prior written consent of Beneficiary, directly or
indirectly sell, transfer, convey, further encumber, assign, grant any
option, subordinate, convert to condominiums or grant any further lien
or easement on all or any part of the Mortgaged Property, or enter
into any agreement for any of the
foregoing, whether by operation of law recorded or unrecorded, or
voluntarily or involuntarily; provided, however, that if the Mortgaged
Property consists of single-family homes, condominiums or other
residential properties to be sold, Trustor may accept sales
reservations and enter into purchase and sales contracts so long as
such actions are consistent with the Loan Documents, all rules and
regulations of the California Department of Real Estate and all other
applicable laws, rules and regulations. Trustor shall promptly notify
Beneficiary in writing of any such intended event or agreement for
which Beneficiary's consent may be required.
6.9 DUE ON SALE. If, without the prior written consent of
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Beneficiary, (a) there is any sale, transfer, assignment, conveyance
or encumbrance, whether voluntary or involuntary, of all or part of
the Mortgaged Property or any interest therein or any other event or
agreement referred to in Section 5.1.18, (b) Trustor or any one or
more of the persons comprising Trustor is a partnership and the
interest of any general partner (or the interest of any general
partner in a partnership that is a partner) is assigned or
transferred, except for an assignment or transfer resulting from the
death or physical or mental incapacity of a general partner; (c)
Trustor or any one or more of the persons comprising Trustor is a
partnership and more than twenty-five percent (25%) of the corporate
stock of any corporation that is a general partner of such partnership
is sold, transferred or assigned; (d) change in ownership (including
the hypothecation or encumbrance thereof) of a majority of the stock
of Trustor held by Xxx Xxxxxx; (e) Trustor is a trust and there is a
change in beneficial ownership with respect to more than twenty-five
percent (25%) of the trust; (f) Trustor consists of several persons or
entities holding fractional undivided interest in the Mortgaged
Property and there is a cumulative change in ownership with respect to
more than a twenty-five percent (25%) fractional undivided interest in
the Mortgaged Property; (g) there is a seizure of the Mortgaged
Property, or attachment of any lien on the Mortgaged Property, whether
voluntary or involuntary, which has not been removed or bonded off to
Beneficiary's satisfaction within thirty (30) days of such attachment;
or (h) there is a change in the controlling executives and directors
of Trustor."
21. INTEGRATION. This Note and the documents described herein
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constitute the entire understanding of Borrower and Xxxxxx with respect to the
matters discussed herein, and supersede all prior and contemporaneous
discussions, agreements and representations, whether oral or written. This Note
may only be modified in a writing signed by Xxxxxx, or its loan servicing agent,
and Borrower.
22. HEADINGS. The section captions are inserted for convenience
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of reference only and shall in no way alter or modify the text of such sections.
23. USE OF BROKER. Borrower acknowledges that the loan
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evidenced by this Note was arranged (as the term "arranged" is used in
California Civil Code Section 1916.1) by Xxx X. Xxxxxx, who is licensed as a
real estate broker in the State of California.
IN WITNESS WHEREOF, Xxxxxxxx, intending to be legally bound hereby,
has duly executed this Note the day and year first above written.
BORROWER: INCO HOMES CORPORATION,
a Delaware corporation
By:_______________________________________
Xxx X. Xxxxxx
President
EXHIBIT A-1
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INVESTORS
1. Xxxx Xxxx $ 50,000 0.042553%
2. Xxxxxx X. Xxxxxxx MD TTEE $ 50,000 0.042553%
FBO Xxxxxx X. Xxxxxxx PSP
UAD 3/16/72
3. Biver Family Trust, Xxxxx X. Xxxxx, TTEE $ 75,000 0.06383%
Xxxxx Xxxxx, TTEE
4. Xxxxxxx Xxxxxx $ 200,000 0.170213%
5. Xxxxx X. Xxxxxxxx & Xxxx Xx Xxxxxxxx $ 150,000 0.12766%
Family Trust DTD 1/8/88, Xxxxx X. Xxxxxxxx &
Xxxx Xx Xxxxxxxx, TTEEs
6. Xxxx Xxxxxxx or Xxxxx X. Xxxxxxx $ 30,000 0.025532%
7. Paanagiotis Dovanaidis or Xxxxxxx Xxxxxxxxx $ 30,000 0.025532%
8. Xxxx Xxxxxxxxx c/f Xxxxxx Xxxxxxxxx UTMA/NV $ 25,000 0.021277%
9. Xxxx Xxxxxxxxx c/f Xxxx Xxxxxxxxx UTMA/NV $ 25,000 0.021277%
10. Xxxxxxx Xxxxxx TTEE FBO $ 50,000 0.042553%
Xxxxxxx Xxxxxx PSP DTD 4/1/78
11. Nevada State Bank C/F Xxxxxx Xxxxxxx IRA R/O $ 100,000 0.085106%
12. Xxxx Xxxxxxxx & Xxxx Xxxxxxxx $ 25,000 0.021277%
13. Xxxxxx & Xxxxx XxXxxxxx Family Trust DTD 10/2/92 $ 150,000 0.12766%
Xxxxxx XxXxxxxx, TTEE
14. Xxxxx & Xxx Xxxxxx Family Trust DTD 10/29/86, $ 100,000 0.085106%
Xxxxx Xxxxxx, Co-TTEE & Xxx Xxxxxx, CO-TTEE
15. Xxxxxx Xxxxxx & Xxxxxxx Xxxxxx $ 90,000 0.076596%
16. Xxxxx Xxxx Xxxxxx Trust, Xxxx Xxxxx Xxxxxx, TTEE $ 25,000 0.021277%
$1,175,000 1.00%
