PROMISSORY NOTE
Exhibit 10.2
PROMISSORY
NOTE
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$[__________]
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Austin,
Texas
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________
__, 2009
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1. PROMISE TO
PAY. For Value Received, XXXXXX FAMILY
COMMUNITIES, INC., a Delaware corporation (hereinafter referred to as
"Maker," whether one or more) promises to pay to the order of LNZCO, LLC
("Payee"), at 00000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 or such other
place as Payee shall designate from time to time, the sum of [insert amount]
($[________]) in legal and lawful money of the United States of America, with
interest thereon from date hereof until maturity at the per annum rate specified
below.
2. INTEREST
RATE. The principal of this Note
from time to time outstanding shall bear interest from the date hereof until
maturity or acceleration at the per annum rate equal to the Base Rate
from day to day in effect plus FIVE per cent (5.0%) per
annum, to be adjusted without notice with each change in the Base Rate;
provided, however, the rate charged hereunder shall never exceed the Maximum
Rate. Matured or
accelerated unpaid, and past due, principal and interest shall bear interest
from date of maturity or acceleration until paid at the highest non-usurious
rate allowed by state or federal law, or if no such rate is established at a
rate per annum equal to eighteen percent (18%) per annum. The
term "Base Rate" as used in this note means a per annum interest rate equal to
the "Prime Rate" as published on the applicable day by The Wall Street
Journal in its "Money Rates" section, and if more than one such rate is
published, then the highest such rate. On any day when The Wall Street
Journal is not published or a Prime Rate is not published under the Money
Rates section thereof, then the Prime Rate published for the preceding
publication date of The Wall Street
Journal shall apply. Should the method of establishing the Prime Rate, or
the publication of such Prime Rate, cease or be abolished, then the Base Rate
used for the balance of the term of this note shall be that interest rate
established, adopted or used by holder as its base interest rate.
Notwithstanding anything herein to the contrary, if on any change date the Base
Rate plus the percentage over such rate and all other sums constituting interest
used to establish the interest hereunder shall exceed the highest non-usurious
rate permitted by applicable law in effect on that day, the rate charged
hereunder shall be limited to, but shall remain at and vary with, the highest
non-usurious rate permitted by applicable law on that day and on each day
thereafter until the total amount of interest accrued at the rate herein stated
on the unpaid balance of this Note equals the total amount of interest which
would have accrued if there were no limitation by the highest non-usurious rate
permitted by applicable law, or until the earlier payment in full of this Note.
The terms “Maximum
Rate” and “highest non-usurious rate” as used in this Note, mean the maximum
non-usurious rate of interest per annum permitted by whichever of applicable
United States federal law or Texas law permits the higher interest rate,
including to the extent permitted by applicable law, any amendments thereof
hereafter or any new law hereafter coming into effect to the extent a higher
Maximum Rate is permitted thereby. To the extent, if any, that the Texas Finance
Code establishes the Maximum Rate, the Maximum Rate shall be the “indicated rate
ceiling” (as defined therein), and such rate shall fluctuate as and to the
extent provided by applicable law if a Variable Rate applies. The Maximum Rate
shall be applied by taking into account all amounts characterized by applicable
law as interest on the debt evidenced by this Note, so that the aggregate of all
interest does not exceed the maximum nonusurious amount permitted by applicable
law (the “Maximum Amount”).
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3. PAYMENT SCHEDULE/MATURITY
DATE. This Note shall be due and payable as follows: In
monthly installments of accrued interest, payable on the 5th day of each and
every calendar month, beginning [______] 5, 2009, and continuing regularly
thereafter through [________] 5, 2010, when the entire amount hereof, principal
and interest then remaining unpaid, if any, shall then be due and payable in
full; provided, however Maker may elect not to pay any payment of
interest when due monthly, the amount of interest in which event accrued through
such payment date shall be added to principal and shall bear interest thereafter
as other principal under this Note.
AT
MATURITY A BALLOON PAYMENT WILL BE DUE. AT MATURITY, YOU MUST REPAY THE ENTIRE
PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST THEN DUE, IF
ANY. PAYEE IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME,
IF ANY. YOU WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS YOU
MAY OWN, OR YOU WILL HAVE TO FIND A LENDER, WHICH MAY BE PAYEE YOU HAVE THIS
LOAN WITH, WILLING TO LEND YOU THE MONEY. IF YOU REFINANCE THIS LOAN AT
MATURITY, YOU MAY HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY
ASSOCIATED WITH A NEW LOAN EVEN IF YOU OBTAIN REFINANCING FROM THE SAME
PAYEE.
If any
payment required under this Note is not paid within ten days of the day such
payment becomes due and payable, then Maker shall pay to Payee, subject to the
provisions of this Note limiting the amount of interest, the payment of a late
charge (the "Late Charge") to compensate Payee for the loss of use of funds and
for the administrative expenses and costs of handling such delinquent payment
equal to a one-time charge of five percent (5.0%) of the amount of such payment
that was not timely paid (but such Late Charge if interest under the law
together with all interest payable hereon shall not exceed the maximum lawful
rate). Payee is not obligated to accept any past due payment that is not
accompanied by a Late Charge, but may accept such payment without waiving its
rights to collect the Late Charge. In no event shall a Late Charge be
payable by reason of the acceleration of the indebtedness evidenced by this
Note; therefore, a Late Charge would only be due and payable with respect to
payments under this Note which become delinquent prior to the acceleration of
the indebtedness evidenced hereby.
4. CERTAIN PROVISIONS REGARDING
PAYMENTS. Whenever any payment shall be due under this Note on
a day which is not a Business Day, the date on which such payment is due shall
be extended to the next succeeding Business Day, and such extension of time
shall be included in the computation of the amount of interest then
payable. "Business Day" means a day other than a Saturday, Sunday or
other day on which national banks in Austin, Texas are authorized or required to
be closed. All payments made as scheduled on this Note shall be applied, to the
extent thereof, to accrued but unpaid interest and to unpaid principal, in such
manner and order as Lender may elect in its discretion. All
prepayments on this Note shall be applied, to the extent thereof, to accrued but
unpaid interest on the amount prepaid and to the remaining principal
installments, in such manner and order as Lender may elect in its discretion,
including but not limited to application to principal installments in inverse
order of maturity. Except to the extent that specific provisions are
set forth in this Note or another Loan Document with respect to application of
payments, all payments received by the holder hereof shall be applied, to the
extent thereof, to the indebtedness secured by the Mortgage in such manner and
order as Lender may elect in its discretion, any instructions from Maker or
anyone else to the contrary notwithstanding. Remittances in payment
of any part of the indebtedness other than in the required amount in immediately
available U.S. funds shall not, regardless of any receipt or credit issued
therefor, constitute payment until the required amount is actually received by
the holder hereof in immediately available U.S. funds and shall be made and
accepted subject to the condition that any check or draft may be handled for
collection in accordance with the practice of the collecting bank or
banks. Acceptance by the holder hereof of any payment in an amount
less than the amount then due on any indebtedness shall be deemed an acceptance
on account only and shall not in any way excuse the existence of a
Default.
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5. DEFAULTS. It
shall be a default ("Default") under this Note and each of the other documents
and agreements executed in connection with this Note (the "Loan Documents") if
(a) 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; (b)
there shall occur any default or event of default under any deed of trust,
security agreement, pledge, mortgage or any other Loan Document; (c) there shall
occur a default under any other loan, obligation or other undertaking between
Payee and Maker, whether or not related to this Note; (d) the liquidation,
termination, dissolution or (if Maker or any guarantor is a natural person)
death or legal incapacity of Maker or any guarantor hereof, unless upon the
death of any guarantor the estate of such guarantor assumes the obligations
hereunder and under the guaranty of such guarantor; (e) the bankruptcy or
insolvency of, the assignment for the benefit of creditors by, or the
appointment of a receiver for any of the property of any party liable for the
payment of this Note, whether as maker, endorser, guarantor, surety or
otherwise; or (f) default in the payment of any other indebtedness due Payee or
default in the performance of any other material obligation to Payee by
Maker. Upon the occurrence of a Default, the holder hereof shall have
the rights to declare the unpaid principal balance and accrued but unpaid
interest on this Note 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. All of the rights, remedies, powers and privileges (together,
"Rights") of the holder hereof 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 the holder hereof 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 the Right. Without limiting the generality of the foregoing
provisions, the acceptance by the holder hereof 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 the holder hereof 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.
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Maker
promises to pay to Payee all of Payee's reasonable collection costs and
expenses, including, but not limited to, (a) court costs; (b) Payee's reasonable
attorneys' fees incurred if any sums under this Note or any document executed
pursuant to or in connection with this Note, or any obligation under this Note
or any document executed pursuant to or in connection with this Note, are
collected or enforced, or collection or enforcement activities are undertaken,
by or through an attorney, whether or not there is a lawsuit; and (c) expenses
incurred to (i) trace and/or locate any obligor; (ii) collect this Note in whole
or in part and, where applicable, reinstate the loan; (iii) trace, locate,
recover, repossess, transport, store, hold, and assess any Collateral (including
environmental assessments and appraisal expenses); (iv) protect the Collateral
and Xxxxx's interest in the Collateral, including the cost of any bonds; and/or
(v) require or seek the remedy or correction of any default or failure of any
term or requirements under this Note or any document executed pursuant to or in
connection with this Note. The costs recoverable by Payee under this section
shall include expenses which may not be taxable as court costs, including,
without limitation, all costs and expenses incident to appellate, bankruptcy,
post-judgment and alternative dispute resolution proceedings. All
such costs and expenses shall be due and payable to Payee immediately upon
Xxxxx's payment of the same and may be added to the principal balance due and,
to the extent permitted by law, shall bear interest at the rate specified in
this Note. Maker shall be liable for the payment of the same as an
additional obligation under this Note, which shall be secured by all Collateral
and each Security Instrument. Payee shall have no duty to release
Collateral until all such costs and expenses, in addition to all other
obligations secured by this Note, are paid in full.
Notwithstanding
any provision in the Note or the Loan Documents to the contrary, in the event of
any default under the Loan Documents or this Note, Maker shall be entitled to
receive written notice of any such default and a period of five (5) days after
such notice is sent by the Payee within which to cure a monetary default and a
period of thirty (30) days after such notice is sent by the Payee within which
to cure a non-monetary default prior to the Payee's being entitled to exercise
any remedy which may arise due to the occurrence of such default, other than the
right to withhold making further advances of funds during the period any such
default remains uncured or the right to protect any collateral for this Note;
provided, however, Maker shall not (i) be entitled to notice of any monetary
default more often than twice in any twelve month period, or (ii) be entitled to
notice of the same non-monetary default more often than once in any twelve month
period.
6. CONTROLLING
PROVISIONS. All parties to the Loan Documents intend to comply
with applicable usury law. All existing and future agreements
regarding the debt evidenced by this Note are hereby limited and controlled by
the provisions of this Section. In no event (including but not
limited to prepayment, default, demand for payment, or acceleration of maturity)
shall the interest taken, reserved, contracted for, charged or received under
this Note or under any of the other Loan Documents or otherwise, exceed the
maximum nonusurious amount permitted by applicable law (the "Maximum
Amount"). If, from any possible construction of any document,
interest would otherwise be payable in excess of the Maximum Amount, then ipso facto, such document
shall be reformed and the interest payable reduced to
the Maximum Amount, without necessity of execution of any
amendment or new document. If the holder hereof ever
receives interest in an amount which apart from this provision would exceed the
Maximum Amount, the excess shall, without penalty, be applied to the unpaid
principal of this Note in inverse order of maturity of installments and not to
the payment of interest, or be refunded to the payor if the principal is paid in
full. The holder hereof does not intend to charge or receive unearned
interest on acceleration. All interest paid or agreed to be paid to
the holder hereof shall be spread throughout the full term
(including any renewal or extension) of the debt so that the amount
of interest does not exceed the Maximum Amount.
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7. SECURITY. Payment
hereof is secured by a deed of trust of even date herewith upon the hereinafter
described real property, to wit: [insert lot description], a subdivision
in [_________] County, Texas, according to the map or plat recorded in Book
[__], Pages [_____], Plat Records of [____] County, Texas
8. GENERAL
PROVISIONS/WAIVERS. If more than one person or entity executes
this Note as Maker, all of said parties shall be jointly and severally liable
for payment of the indebtedness evidenced hereby. Maker and all sureties,
endorsers, guarantors and any other party now or hereafter liable for the
payment of this Note in whole or in part, hereby severally (i) 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; (ii) agree to any substitution,
subordination, exchange or release of any such security or the release of any
party primarily or secondarily liable hereon; (iii) agree that the holder hereof
shall not be required first to institute suit or exhaust its remedies hereon
against Maker or others liable or to become liable hereon or to enforce its
rights against them or any security herefor; (iv) 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; (v)
submit (and waive all rights to object) to non-exclusive personal jurisdiction
in the State of Texas, and venue in the county in which payment is to be made as
specified on the first page of this Note, for the enforcement of any and all
obligations under the Loan Documents; (vi) agrees that any extension of time for
the payment of this Note shall not release or reduce the liability of any
obligor, and further waives all notice of each such extension; (vii) waives all
rights to discharge under §3.605 of the Texas Business and Commerce Code, as
amended from time to time, and the corresponding provisions of any other state
or federal laws; (viii) waives all claims against Payee and all defenses based
on suretyship or impairment of collateral, including any rights or defenses any
obligor may have pursuant to Rule 31 or Rule 32 of the Texas Rules of Civil
Procedure, §17.001 of the Texas Civil Practice and Remedies Code and Chapter 34
of the Texas Business and Commerce Code, as amended from time to time; and (ix)
agrees that none of the following shall release or reduce the liability of any
obligor in any manner whatsoever: (i) the release of any one or more of the
obligors or any settlement or compromise with any one or more of the obligors
with respect to this Note, any Security Instrument or any of the other Loan
Documents; (ii) the taking or compromise, modification, substitution, exchange,
impairment, waiver, release or surrender of any Collateral or Security
Instrument taken as security for this Note or for performance under any Security
Instrument or any of the other Loan Documents; or (iii) the amendment,
modification, extension, renewal, increase, or consolidation of this Note, any
Security Instrument or any of the other Loan Documents, and each obligor waives
notice of each such release, settlement, compromise, taking, substitution,
exchange, impairment, waiver, surrender, amendment, modification, extension,
renewal, increase, or consolidation. Payee shall have no duty
whatsoever to monitor or verify the use of the proceeds of this Note or to
ensure or verify that any loan proceeds are used for the purpose described in
any of the Loan Documents. Each obligor hereby waives and agrees not
to assert against Payee any claim or defense whatsoever based on (a) the actual
use of loan proceeds, (b) the failure of any loan proceeds to be used for any
purpose described in any of the Loan Documents and/or (c) Xxxxx's knowledge that
loan proceeds were not used for the purpose described in any of the Loan
Documents. To the fullest extent allowed by law, the parties hereto expressly
waive the provisions and requirements of the Texas Credit Code, and agree that
the terms of this note shall not be governed by the provisions
thereof.
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Any
previous extension of time, forbearance, failure to pursue some remedy, or
acceptance of partial payment by Xxxxxx, before or after maturity, does not
constitute a waiver by Lender of the existence of any event of default nor of
its right to strictly enforce the collection of this Note according to its
terms. Time is of the essence in Xxxxxxxx's performance of all duties and
obligations imposed by this Note. This Note may not be amended except in a
writing specifically intended for the purpose and executed by the party against
whom enforcement of the amendment is sought.
9.
JURISDICTION/VENUE/LEGAL
ELECTIONS. THIS
NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE
GOVERNED BY TEXAS LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND
APPLICABLE UNITED STATES FEDERAL LAW. VENUE FOR ENFORCEMENT OF
THIS NOTE AND ALL OBLIGATIONS OF PAYEE HEREUNDER IS SET AND AGREED IN XXXXXX
COUNTY, TEXAS FOR ALL PURPOSES. ANY ACTION RELATED TO THIS NOTE OR ANY
COLLATERAL AGREEMENT CONNECTED WITH THIS NOTE SHALL BE BROUGHT IN STATE DISTRICT
COURT IN XXXXXX, XXXXXX COUNTY, TEXAS, UNLESS AGREED OTHERWISE BY PAYEE. MAKER
WAIVES ALL RIGHTS TO SEEK RELIEF IN ANY FEDERAL COURT ON THE BASIS OF DIVERSITY
OF CITIZENSHIP. If United States federal law shall permit a greater
Maximum Rate than the rate determined under said Texas Credit Code, then such
federal law, from time to time in effect, shall determine the Maximum Rate
hereunder. It is understood and agreed that if subsequent to date, the Maximum
Rate is increased by statute or other official action, then each Maker,
guarantor, surety and endorser agrees that new Maximum Rate will be applicable
to this Note from the effective date of the new Maximum Rate forward, unless
such application is precluded by the relevant statute or official
action.
10. ASSIGNMENT BY
PAYEE. Payee shall at all time have the right, both before and
after this date, to assign all or a portion of this loan or to participate with
one or more other entities as lenders. Payee is hereby authorized to disseminate
any information it has pertaining to the loan evidenced by this Note, including,
without limitation, any security for this Note and credit information on the
undersigned, any of its principals and any guarantor of this Note, to any such
assignee or participant or prospective assignee or prospective participant, and
to the extent, if any, specified in any such assignment or participation, such
assignee(s) or participant(s) shall have the rights and benefits with respect to
this Note and the other Loan Documents as such person(s) would have if such
person(s) were Xxxxxx xxxxxxxxx. The terms, provisions, covenants and
conditions hereof shall be binding upon Maker and the heirs, devisees,
representatives, successors and assigns of Maker.
11. DEFINITION OF
TERMS. As used herein, (a) "maker" means each maker who signs
this Note, jointly and severally; (b) "guarantor" means each guarantor who
guarantees the payment of all or any portion of this Note; (c) "obligor" means
each maker, guarantor, endorser, and surety of all or any portion of this Note;
(d) this "Note" refers to this instrument and to the indebtedness evidenced by
this instrument; (e) "Security Instrument" includes each and every pledge,
assignment, security agreement, guaranty, mortgage, deed to secure debt, deed of
trust, hypothecation, or other security instrument or arrangement given to
secure repayment of all or any portion of this Note or performance under any of
the Loan Documents, whether now existing or hereafter arising; (f) "Collateral"
means any collateral that secures repayment of this Note; (g) "Loan Documents"
include all documents executed and delivered in connection with the loan
transaction evidenced by this Note (including this Note, each Security
Instrument, any loan commitment letters, any loan agreements and all loan
application documents), whether now existing or hereafter arising; and (h)
"Payee" means LNZCO, LLC and its successors and assigns and
participants. The terms "Note", "Security Instrument", and "Loan
Documents" include all amendments, modifications, extensions and renewals
thereof. If the terms of any of the Loan Documents conflict with the terms of
this Note, the terms of this Note shall control.
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12. COLLATERAL PROTECTION
INSURANCE NOTICE. IF THIS NOTE IS SECURED BY REAL PROPERTY OR BY TANGIBLE
PERSONAL PROPERTY, MAKER IS REQUIRED (i) TO KEEP THE COLLATERAL INSURED AGAINST
DAMAGE IN AT LEAST THE AMOUNT EQUAL TO MAKER'S INDEBTEDNESS TO PAYEE, (ii)
PURCHASE THE INSURANCE FROM AN INSURER THAT IS AUTHORIZED TO DO BUSINESS IN THE
STATE OF TEXAS OR AN ELIGIBLE SURPLUS LINES INSURER, AND (iii) NAME PAYEE AS THE
PERSON TO BE PAID UNDER THE POLICY IN THE EVENT OF A LOSS. MAKER
MUST, IF REQUIRED BY XXXXX, DELIVER TO PAYEE A COPY OF THE POLICY AND PROOF OF
PAYMENT OF PREMIUMS. IF MAKER FAILS TO MEET ANY OF THESE
REQUIREMENTS, PAYEE MAY OBTAIN COLLATERAL PROTECTION INSURANCE ON MAKER'S BEHALF
AT MAKER'S EXPENSE.
13. SPECIAL
PROVISIONS. a. This note
is for business purposes. None of the proceeds will be used for family,
household or consumer purposes. b. The parties hereto expressly waive the
provisions and requirements of Chapter 346 of the Texas Finance Code, and agree
that the terms of this Note shall not be governed by the provisions thereof. c.
This instrument is a "draw note" written in the full principal amount
that may be drawn by the Maker as interim financing for the construction of
improvements on real property described above. Interest shall accrue
only from the date funds are advanced, and liability of Maker is limited to the
unpaid principal actually drawn plus unpaid interest, plus such other expenses
as may be specifically provided for in this note or a related collateral
document. Payee shall
not be required to advance funds under this note unless all terms, conditions
and obligations of that certain Loan Agreement between the parties hereto have
been and continue to be performed.
The
following notice is applicable only if the face amount of this note is in excess
of $50,000.00:
THE WRITTEN 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.
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THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN
WITNESS WHEREOF, Xxxxx has duly executed this Note as of the date first above
written.
| XXXXXX FAMILY COMMUNITIES, INC. | |||
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By:
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