EXHIBIT 10.95
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Xxxxx & Xxxxx
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxx
_________________________________________________________________
SUBORDINATION AND RECONVEYANCE AGREEMENT
NOTICE: THIS SUBORDINATION AND RECONVEYANCE AGREEMENT RESULTS IN YOUR INTEREST
IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE
LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AND RECONVEYANCE AGREEMENT (this "Agreement") is
made as of November 18, 1997, by and among INCO HOMES CORPORATION, a Delaware
corporation ("Borrower"), HUNTER'S RIDGE INVESTMENT PARTNERS, a California
partnership ("Junior Lender"), and USA COMMERCIAL MORTGAGE COMPANY, as agent and
attorney-in-fact for the parties listed on Exhibit A-1 attached hereto
("Lender").
RECITALS
X. Xxxxxxxx is the fee simple owner of certain real property
located in Fontana, San Bernardino County, California, as more particularly
described in Exhibit A attached hereto and incorporated herein (the "Property").
---------
Borrower seeks to develop a 42 lot single-family home subdivision on the
Property (each lot in the subdivision, and the home constructed thereon, shall
be referred to as a "Home").
X. Xxxxxxxx seeks a $1,275,000 loan (the "Loan") from Lender in
order to refinance the Property and pay certain construction costs to develop
the Property. The loan will be evidenced by a Promissory Note in the original
principal amount of $1,275,000, which note will be secured by a Construction
Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture
Filing (the "Deed of Trust") that will constitute a second lien on the Property.
The Deed of Trust is recorded on _____________, 1997 as Instrument No.
_____________ in the Official Records of San Bernardino County, California
("Official Records").
X. Xxxxxx Xxxxxx has made a $1,200,000 loan to Borrower (the
"Existing Junior Loan") that is secured by a Deed of Trust dated October 22,
1996 and recorded on October 22, 1996 as Instrument No. 96-390257 that encumbers
the Property. A portion of the Loan proceeds will be used to repay a portion of
the Existing Junior Loan, and the balance of the unpaid portion of the Existing
Junior Loan will be evidenced by a note in the amount of $473,972.60 ("New
Junior Note") and secured by a new deed of trust given by Borrower to Junior
Lender (the "New Junior DOT"). The New Junior DOT is recorded on ____________,
1997 as Instrument No. ____________ in the Official Records.
E. As a condition to making the Loan, Xxxxxx is requiring that
Junior Lender enter into this Agreement whereby it agrees, among other things,
that the lien created by the New Junior DOT shall be junior and subordinate to
the lien created by the Deed of Trust.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits accruing to
the parties hereto and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, it is hereby understood and agreed as follows:
1. The lien created by the Deed of Trust and by any other
documents that relate to the Loan, and any amendments or modifications thereto,
shall unconditionally be and remain at all times a lien on the Property and the
"Mortgaged Property" (as that term is defined in the Deed of Trust) prior and
superior to the lien created by the New Junior DOT, and the lien created by the
New Junior DOT is hereby irrevocably and unconditionally subjected and made
subordinate to the lien created by the Deed of Trust and such. The
subordination created by this Agreement shall not be affected by any increase,
alteration, renewal or other modification of any of the obligations secured by
the Deed of Trust, nor by any additional advances made to Borrower in connection
with the Loan.
2. This Agreement shall be the whole and only agreement between
the parties hereto with regard to the subordination of the lien of the Junior
Deed of Trust to the lien of the Deed of Trust, and shall supersede and cancel
any prior agreements.
3. Xxxxxx Xxxxxx agrees and acknowledges that Xxxxxx, in
disbursing the Loan to Borrower, is under no obligation or duty to, nor has
Xxxxxx represented to Junior Lender that it will, see to the application of such
proceeds by the person or persons to whom it disburses such proceeds, and any
application or use of such proceeds for purposes other than those provided for
in the documents that evidence the Loan shall not alter or diminish all or any
part of the subordination made in this Agreement. Xxxxxx Xxxxxx further
acknowledges that neither Lender nor its representatives (including USA
Commercial Mortgage and its affiliates and officers) has advised Junior Lender
as to the merits and risks associated with the Loan, and that Junior Lender has
made its own financial analysis with respect to these risks and has agreed to
the terms of this Agreement based on its own analysis.
4. Xxxxxx Xxxxxx acknowledges that, upon the closing of the Loan,
its lien in the Property created by the New Junior DOT will be subject and
subordinate to the liens of (i) Independent Lending Corporation, a Delaware
Corporation d/b/a Construction Lending Corporation of America (the "Senior
Lender"), as the beneficiary under that certain Deed of Trust dated October 3,
1996 and recorded on October 22, 1996 in the Official Records as Instrument No.
96-390256 (the "Senior Deed of Trust"), which has a first lien priority interest
in the Property, and (ii) Lender, as the beneficiary under the Deed of Trust,
which has a second lien priority interest in the Property.
5. Junior Lender acknowledges that, under the terms of the Senior
Deed of Trust and the Deed of Trust, the gross sales proceeds generated by each
sale of a Home will be applied to pay the following: (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 Lender or its
loan servicing agent, (iv) $1,000, to be paid to Borrower to fund a warranty
reserve with respect to the Homes, and (v) amounts to be paid to Lender in order
to cause the Home to be released from the lien of the Deed of Trust. The
balance of the gross sales proceeds, if any, may then be paid to Junior Lender
to the extent Junior Lender is entitled to such balance under the terms of New
Junior DOT. At the close of escrow for the sale of each Home, Borrower shall
provide Lender and Junior Lender with a statement, certified by an officer of
Borrower to be true and correct, which shows that the sales proceeds from such
Home were distributed as set forth in this Paragraph 5.
6. Junior Lender acknowledges that, as a condition to making the
Loan, Xxxxxx has required Junior Lender to deposit in an escrow held with Orange
Coast Title Company ("Escrow Agent") at 0000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000, fully executed requests for reconveyance (with respect
to the Junior Deed of Trust) for each of the Homes (the "Reconveyances"). Xxxxxx
Xxxxxx agrees that when a Home is sold and the Senior Lender and Lender are
prepared to reconvey the liens created by the Senior Deed of Trust and the Deed
of Trust, respectively, as to that Home, then Escrow Agent is authorized to
automatically cause the lien of the Junior Deed of Trust to also be reconveyed,
regardless of the amount of proceeds, if any, from such sale that will be paid
to Junior Lender.
7. Xxxxxx Xxxxxx agrees (i) to execute escrow instructions to
Escrow Agent that direct Escrow Agent to comply with the terms of Paragraph 6
above, (ii) that it will not withdraw or seek to withdraw the Reconveyances from
Escrow Agent or otherwise seek to prevent the release of a Home from the lien of
the Junior Deed of Trust if the Senior Lender and Lender are prepared to give
such a release from the liens of the Senior Deed of Trust and Deed of Trust,
respectively, and (iii) that Senior Lender is an express third party beneficiary
with respect to Xxxxxx Xxxxxx's obligations under this Paragraph 3. Xxxxxx
Xxxxxx further agrees that its failure to comply with the provisions of this
Paragraph 3 may result in the inability of Borrower to close the sale of a Home,
the loss of reputation of Borrower to potential home buyers, and other harm to
Borrower, Senior Lender and Lender that cannot be adequately compensated by
monetary sums. Accordingly, Xxxxxx Xxxxxx agrees that Xxxxxxxx, Senior Lender
and/or Lender may seek injunctive relief, including specific performance, to
enforce the terms of Paragraph 6 above, and Junior Lender waives all rights that
it may have to contest any such action for injunctive relief. Escrow Agent is
an express third party beneficiary to Paragraphs 6 and 7 of this Agreement.
8. Xxxxxx agrees to deliver to Junior Lender within ten (10) days
after the end of each calendar month, a complete and detailed report of the
status of the Loan and all matters pertaining to the Loan (such as interest
due/paid, interest reserves, balance in the Phase 1 construction loan reserve,
etc.). Lender shall promptly inform Junior Lender of any default of Borrower
under the Loan.
9. Borrower agrees to deliver to Junior Lender within ten (10)
days after the end of each calendar month a complete detailed report of both (i)
all payments made by Borrower to Lender on the Loan, and (ii) all relevant items
pertaining to the construction and sale of Homes on the Property including, but
not limited to, sales, close of sale escrows including a copy of the seller's
closing statement, a detailed accounting of the use of all net proceeds realized
from the sale of each Home (including payments to Lender and Junior Lender), and
any and all other items that relate to the payment of the New Junior Note as may
be requested by Xxxxxx Xxxxxx.
10. Lender and Junior Lender each agree that, if there should
occur an event of default under their respective deeds of trust that encumber
the Property, they shall each provide the other with a copy of any written
notice of such event of default that is delivered to Borrower.
11. This Agreement shall be binding on and inure to the benefit
of the legal representatives, heirs, successors and assigns of the parties.
12. Any notice requirement set forth herein shall be deemed to be
satisfied three (3) days after mailing of the notice first-class United States
Certified mail, postage prepaid, or upon receipt, if personally delivered or
sent by facsimile, addressed to the appropriate party as follows:
BORROWER: Inco Homes Corporation
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
XXXXXX XXXXXX: Hunter's Ridge Investment Partners
000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
LENDER: c/o USA Commercial Mortgage Company
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Fax: (000) 000-0000
13. This Agreement may be signed by different parties hereto in
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument. All counterparts shall be deemed an original of this
Agreement.
14. Xxxxxx Xxxxxx, upon reasonable written request of Xxxxxx,
will execute, acknowledge and deliver, or arrange for the execution,
acknowledgment and delivery of, such further instruments and do such further
acts as may be necessary, desirable or proper to carry out more effectively the
purposes of this Agreement.
15. This Agreement and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of California. Each party consents to the jurisdiction of the California
state courts and the federal courts located in California with respect to any
suit or action arising out of this Agreement.
16. In the event that any suit or action be brought hereon, or an
attorney be employed or expenses be incurred to interpret or enforce the terms
of this Agreement, including any action for injunctive relief, the prevailing
party shall be entitled to recover its attorneys' fees, costs and expenses
incurred in connection with such suit or action
17. This Agreement constitutes the entire agreement between or
among the parties hereto with respect to the matters addressed therein, and
supersedes all prior oral or written communications or agreements with respect
to such matters. This Agreement may only be modified by a writing signed by all
of the parties hereto.
18. Time is of the essence to each and all of the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first set forth above.
BORROWER: INCO HOMES CORPORATION,
a Delaware corporation
By:_______________________________
Xxx X. Xxxxxx
President
XXXXXX XXXXXX: HUNTER'S RIDGE INVESTMENT PARTNERS,
a California partnership
By:________________________________
Xxxxxx X. Xxxxx, Xx.
Managing Partner
LENDER: USA COMMERCIAL MORTGAGE COMPANY
as agent and attorney-in-fact for the Lender
By:________________________________
Name:______________________________
Its:_______________________________
