EXHIBIT 10.93
PROMISSORY NOTE
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$473,972.60 November 18, 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 HUNTER'S RIDGE INVESTMENT PARTNERS, a California
partnership ("Holder"), or order, c/o Xxxxxx X. Xxxxx, Xx., 000 Xxxx 000xx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 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 FOUR HUNDRED SEVENTY-THREE THOUSAND NINE
HUNDRED SEVENTY-TWO and 60/100 DOLLARS ($473,972.60) or such greater or lesser
sum as may be outstanding pursuant to this Note and the Deed of Trust and
Assignment of Rents dated as of even date with this Note, between Borrower and
Holder (the "Deed of Trust") 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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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 Deed of Trust and
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Assignment of Rents, 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 Fontana, San Bernardino County,
California, as the same may be amended or otherwise modified.
(b) "EVENT OF DEFAULT" means a default under this Note, the
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Deed of Trust or any other Loan Document.
(c) "HOME" OR "HOMES" means the 42 single-family home lots, as
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well as all improvements constructed thereon, located in Fontana, San Bernardino
County, California that constitute a part of the Mortgaged Property.
(d) "INTEREST RATE" means a rate per annum equal to ten
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percent (10%).
(e) "LOAN DOCUMENTS" means any other documents that evidence
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or relate to the loan evidenced by this Note.
(f) "MATURITY DATE" means the date which occurs fifteen (15)
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months after the date hereof.
(g) "MORTGAGED PROPERTY" means the real and personal property
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covered by the Deed of Trust.
(h) "NET SALES PROCEEDS" for any Home means the gross sales
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price of such Home less (i) reasonable and customary closing costs and broker's
commission incurred in connection with the sale of the Home, provided that the
broker's commission paid to Borrower or an affiliate of Borrower shall not
exceed one and one-half percent (1 1/2%) of the gross sales price, (ii) amounts
to be paid to the Senior Lender in order to cause the Home to be released from
the lien of the Senior Deed of Trust , (iii) amounts, if any, to be paid to
contractors and material and labor providers with respect to materials and labor
provided in connection with the construction of the Home so that the Home can be
sold free and clear of all mechanics' liens; provided, however, that if the
total due to such contractors and material and labor providers for any Home
exceeds $5,000, then the payment to such contractors and material and labor
providers must be approved by the Second Lender or its loan servicing agent,
(iv) $1000, to be paid to Borrower to fund a warranty reserve with respect to
the Homes, and (v) amounts to be paid to Second Lender in order to cause the
Home to be released from the lien of the Second Deed of Trust.
(i) "RELEASE PRICE" for any Home means an amount equal to the
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lesser of (i) $13,000, plus accrued interest owing under this Note and plus the
Release Price Shortfall, if any, or (ii) the Net
Sales Proceeds for such Home.
(j) "RELEASE PRICE SHORTFALL" As of the date this Note is
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executed and delivered, the Release Price Shortfall shall be equal to zero. The
Release Price Shortfall shall be increased each time the Net Sales Proceeds
resulting from the sale of a Home and paid to Holder is less than $13,000. The
increase in the Release Price Shortfall shall be equal to the difference between
the Net Sales Proceeds paid to Holder and $13,000. The Release Price Shortfall
shall be decreased each time the Net Sales Proceeds for a Home that is paid to
Holder exceeds $13,000. The decrease in the Release Price Shortfall shall be
equal to that portion of the Net Sales Proceeds paid to Holder that exceeds
$13,000.
(k) "RESIDUAL PROCEEDS" as to any Home means an amount equal
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to one-half of the positive difference, if any, between the Net Sales Proceeds
for such Home and the Release Price.
(l) "SECOND DEED OF TRUST" means that certain Construction
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Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture
Filing dated November ___, 1997 and recorded on November ___, 1997 in the
Official Records of San Bernardino County, California as Instrument No.
_____________, given by Xxxxxxxx, as trustor, for the benefit of the Second
Lender, that encumbers the Mortgaged Property.
(m) "SECOND LENDER" means the parties named in the Second Deed
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of Trust as beneficiary.
(n) "SENIOR DEED OF TRUST" means that certain Deed of Trust
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dated October 3, 1996 and recorded on October 22, 1996 in the Official Records
of San Bernardino County, California as Instrument No. 96-390256, given by
Xxxxxxxx, as trustor, for the benefit of the Senior Lender, that encumbers the
Mortgaged Property.
(o) "SENIOR LENDER" means Independent Lending Corporation, a
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Delaware Corporation d/b/a Construction Lending Corporation of America, as the
beneficiary under the Senior Deed of Trust, and its successors and assigns under
the Senior Deed of Trust.
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 365
days and multiplied by the Interest Rate. Interest that accrues but remains
unpaid shall not compound (i.e., shall not be added to principal).
3. PAYMENT OF PRINCIPAL AND INTEREST. The Principal Balance and
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interest thereon shall be due and payable as follows:
(a) Borrower shall pay, at the time the sale of each Home
closes (i.e., title transfers from the Borrower or other owner of the Home to
the purchaser of the Home), an amount equal to the Release Price and the
Residual Proceeds. The Residual Proceeds will be applied against the interest
and principal owing under this Note.
(b) 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
Deed of Trust and the Loan Documents.
4. APPLICATION OF PAYMENTS. Each payment received by Holder from
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Borrower with respect to this Note shall be applied against the interest,
principal and other amounts owing under this Note, the Deed of Trust and the
Loan Documents in such 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 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 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 five percent (5%) (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 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 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 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 Deed of Trust and the Loan Documents.
11. REMEDIES CUMULATIVE. The remedies of Holder, as provided in
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this Note, 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, or any of the other Loan Documents,
Borrower promises to pay all such attorneys' fees, costs and expenses all as
actually incurred by Holder 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 Deed of
Trust or any other Loan 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. 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.
21. 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.
22. 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:
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Xxx X. Xxxxxx
President
