EXHIBIT 10.5
PLACEMENT AGREEMENT
This Agreement is entered into as of April 15th, 1997, by and between INCO
HOMES CORPORATION, a Delaware corporation ("Inco"), and USA COMMERCIAL MORTGAGE
COMPANY, a Nevada corporation ("USA"), with reference to the following facts:
RECITALS
A. USA, in association with Xxx Xxxxxx, a real estate broker licensed
in the State of California ("Xxxxxx"), has arranged for Inco, a loan (the
"Loan") with a Note Amount of $1,000,000.00 from certain individual lenders
(collectively, "Lender"). Capitalized terms used herein and not otherwise
defined herein are used with the meanings given them in the Loan Agreement
between Inco and the Lenders regarding the Loan.
B. In connection with such loan, Inco has agreed to pay a fee in the
total amount of $100,000.00 (the "Loan Fee") to USA. In addition, Inco has
agreed to pay to USA an additional fee in the amount of $62,000.00, payable at
the rate of $1,000.00 per Lot for each Lot sold on the Property which secures
the Loan (the "Additional Fee").
C. Parties hereto wish to agree as to the terms and conditions for the
payment of the Loan Fee and the Additional Fee.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Inco and USA hereby agree as follows:
1. Payment of Loan Fee. The Loan Fee is included in the principal
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amount evidenced by the Note executed by Inco in favor of the Lenders, of even
date herewith, and shall be paid to USA in accordance with the terms of the
Note. All fees and commissions of Xxxxxx shall be paid in full by Inco, and
Inco shall hold USA harmless from any claim for such fees or commissions.
2. Payment of the Additional Fee. The total Additional Fee payable
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by Inco to USA shall equal $62,000.00. On the date the Loan is funded, Inco
shall execute a promissory note in the amount of $62,000.00 payable to USA (the
"Additional Fee Note"). Said note shall have a term of ???? ???? months
from the date the Loan is funded (the "Maturity Date") and shall bear no
interest if it is paid in full by its maturity date. Inco shall pay the
Additional Fee, in increments of $1,000.00 per Lot, upon the sale of each Lot on
the Property which secures the Loan. Payments of said amounts shall be made on
the last day of each month in which lot sales have occurred in the amount of
$1,000.00, multiplied by the number of lots sold. If the Loan is paid in full
prior to the maturity date of the Fee Note, then the Fee Note shall remain due
and payable in accordance with its terms. From and after the Maturity Date, the
outstanding balance of the Fee Note shall bear
interest at the rate of ten percent (10%) per annum until it is paid in full.
3. Inco's Liability for Loan Fee. The Loan Fee and the Additional
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Fee are deemed fully earned on the date the Loan is funded.
4. Attorneys' Fees. Inco shall pay the fees and costs of Lenders'
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attorney(s) incurred in the investigation, negotiation and documentation of the
Loan. Said fees and costs shall not exceed $5,000.00. Inco has paid a portion
of those fees and costs in the amount of $2,500.00 which is deemed to be fully
earned and non-refundable.
5. Future Transactions. Inco agrees that if Inco or any affiliate
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of Inco, or any entity in which Xxx Xxxxxx is a shareholder, partner or member
or with which he is associated, obtains any financing from any person or entity
which comprises Lender or any affiliate of Lender within three (3) years after
the final payment of the Loan, then USA (so long as it is a licensed mortgage
company) shall be entitled to receive a fee equal to two percent (2%) of the
amount loaned by such Lender.
6. Miscellaneous.
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(a) This Agreement shall be governed by the laws of the State of
Nevada.
(b) Time is of the essence of this Agreement.
(c) The parties hereto agree to execute and deliver such
additional documents or instruments as they may be reasonably necessary to
effectuate the terms and conditions of this Agreement.
(d) In the event of any dispute hereunder or in any action for
the enforcement of this Agreement, the prevailing party shall be entitled to
receive from the non-prevailing party its attorneys' fees and costs of suit.
(e) This Agreement shall inure to the benefit of the parties
hereto and their respective heirs, successors and signs.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
Inco: USA:
Inco Homes Corporation, USA Commercial Mortgage Company,
a Delaware corporation a Nevada Corporation
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx,
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Xxx Xxxxxx, President Xxxxxx Xxxxxxx, President
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