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Page 17 of 30 Pages
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EXHIBIT 5
PROMISORY NOTE SECURED BY
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STOCK PLEDGE AND DEED OF TRUST
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Lender: Borrower:
Imperial Credit Industries, Inc. X. Xxxxx Xxxxxxx
00000 Xxxxxxxxx Xxxxxxxxx 0000 Xxxxx Xxx Xxx
Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxxxx Xxxxxxx, XX 00000
Xxxxxxxx, Xxxxxxxxxx 00000
FOR VALUE RECEIVED, the undersigned, X. Xxxxx Xxxxxxx, promises to pay to
the order of the above-named Lender, its successors and assigns, at the above
address or at such other place as Lender may designate in writing, in lawful
money of the United States of America, the sum of One Million Nine Hundred
Ninety Nine Thousand Nine Hundred and Ninety Eight Dollars ($1,999,998) together
with interest thereon from the date hereof at the interest rate described below
(the "Interest Rate") on the principal balance in the manner provided below:
1. Security, Payments, Interest. At Borrower's expense, this
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Promissory Note has been secured by Borrower having pledged to Lender (i)
143,369 shares of common stock of Imperial Credit Commercial Mortgage Investment
Corp. (the "Stock") in the form of a Security Agreement (Pledge of Securities)
and (ii) that certain "Straight Note" and Deed of Trust, and the proceeds
thereof, executed on June 4, 1997, by Xxxxxx X. Xxxxxxx for the benefit of X.
Xxxxx Xxxxxxx, in the amount of $967,500, the recorded Deed of Trust encumbering
property known as Parcel 2, Book 102, Page 32 of Parcel Maps for the City of
Huntington Beach, Orange County, California (the "Property"), and Lender shall
have all rights and remedies to which a secured party is entitled under
California law.
Payments made by Borrower shall be applied first to the payment of the
charges and interest accrued on the unpaid principal balance as of the date of
receipt and the remainder, if any, shall be applied to the reduction of the
unpaid principal, except upon default Lender will allocate payment(s) to
principal, interest, and/or charges in its discretion. This Note shall bear
interest on the unpaid principal balance hereof from time to time outstanding at
an Interest Rate of 10.4% per annum. All interest shall be calculated on the
basis of a three hundred sixty five (365) day year. Interest shall be paid to
the Lender from the date hereof semi-annually in arrears on June 15 and December
15 of each year, commencing June 15, 1998. The outstanding principal and all
remaining accrued interest shall be payable in one installment on June 14, 2002,
unless extended by Lender at its sole discretion. This Note may be prepaid, in
whole or in part, at any time without penalty.
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2. Default. Upon failure to pay any payment when due or to perform any
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obligation, covenant, or agreement contained in this Note or any other documents
provided by Borrower to Lender to induce Lender to make the loan evidenced by
this Note, or should any statement contained therein be found to be false or
misleading in any material respect; or should Borrower make an assignment for
the benefit of creditors, or if a petition be filed by or against Borrower under
any state insolvency law or under the Bankruptcy Code, as amended and not
dismissed or discharged within 60 days; or, if the Borrower shall sell,
transfer, convey or alienate the Stock or the Property, or any part thereof, or
any interest therein, or shall be divested of his title or any interest therein
in any manner or way, whether voluntarily or involuntarily, without the written
consent of the Lender being first had and obtained; then borrower shall be in
default under this Note, and the whole sum of principal, interest, charges and
advances, if any, shall become immediately due and payable at Lender's option
and without notice. The acceptance of any payment of principal or interest by
Xxxxxx after the time when it becomes due, as herein specified, shall not be
held to establish a custom, or to waive any rights of Lender to enforce payment
or assert any other rights, nor shall any failure or delay to exercise any
rights be held to waive the same. The rights or remedies of Lender as provided
in this Note may be pursued singly, successively, or together against Xxxxxxxx
at the sole discretion of the Lender.
3. Attorneys' Fees and Other Expenses. Borrower shall pay upon demand
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reasonable attorneys' fees, and all other out-of-picker expensess, including
filing, recording, or other costs or fees incurred by Lender in connection with
this Note, including attorneys' fees incurred by Lender if: (a) legal counsel is
engaged to assist in the collection of this Note after a default hereunder
whether or not suit is instituted, (b) any action is brought which may
significantly affect Xxxxxx's rights, such as an action to cancel, rescind,
construe or enforce this Note or to enforce laws or regulations in connection
therewith, or (c) Borrower becomes subject to a proceeding under the provisions
of the Bankruptcy Code and Lender in the exercise of prudent business practices
engages counsel to represent the interests of Lender.
4. Compliance With Laws. All of the terms and provisions of this Note
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shall be construed in compliance with all applicable laws. If any charge of fee
due hereunder is invalid, unenforceable or excessive under any law, then such
charge or fee shall be deemed modified or reduced to the extent required by law,
and any such sums collected by Lender in excess of the maximum amount permitted
by such law shall, at Xxxxxx's option, be refunded to Borrower or reapplied to
any principal, interst, deficiency or other amounts due hereunder and Xxxxxx
shall have no further liability to Borrowere as a result thereof.
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Page 19 of 30 Pages
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5. Assignment. Lender shall have the right to sell, assign, or
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otherwise transfer, either in part or in its entirety, this Note and any other
instrument evidencing indebtedness of this Note without Xxxxxxxx's
consent. This Note and all of the covenants, promises, and agreements contained
in it shall be binding on and inure to the benefit of their respective legal
representatives, successors, and assigns.
6. Entire Agreement. This Note and the security agreements referenced in
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Paragraph 2 above contain the entire agreement between the Lender and Borrower
with respect to the subject manner hereof and supersede any and all prior
arrangements, proposals or understandings, written or oral, by or between Xxxxxx
and Borrower with respect to all transactions contemplated by this Note and the
terms hereunder. In the event of any conflict or inconsistency between any
provision of this Note and any provision of any other document or writing
executed by Xxxxxx and/or Borrower, the provision of this Note shall take
precedence and shall control, unless the conflicting or inconsistent provision
is such other document or writing specifically refers to this Note and
specifically states that it shall prevail. No amendment or modification of this
Note shall be effective for any purpose unless the same be in writing and duly
executed by both Xxxxxx and Xxxxxxxx.
7. Severability of Provisions. If any provision or any portion of any
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provision of this Note or the application of any such provision or any portion
thereof to any person or circumstance, shall be held invalid or unenforceable,
to the extent permitted by law, the remaining portion of such provision and the
remaining provisions of this Note or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby.
8. Miscellaneous. No delay or omission on the part of Lender in
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exercising any rights under this Note on default by Borrower shall operate as a
waiver of such right or of any other right under this Note, for the same default
or any other default. The pleading of any statute of limitations as a defense to
the obligations evidenced by this Note is waived. Time is of the essence for
each and every obligation under this Note. This Note shall be construed
according to and governed by the laws of the State of California. IN
THE EVENT ACTION IS INSTITUTED UNDER THIS NOTE, BORROWER WAIVES RIGHT TO TRIAL
BY JURY.
DATED: October 21, 1997
/s/ X. Xxxxx Xxxxxxx
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X. Xxxxx Xxxxxxx
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