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EXHIBIT 10.49
NOTE SECURED BY
COLLATERAL SECURITY AGREEMENT
("NOTE")
$625,000.00 January 12, 1998
A. FOR VALUE RECEIVED, the undersigned, ANGELES ACQUISITION
CORPORATION and CONSOLIDATED CAPITAL CORPORATION OF
NORTH AMERICA, INC., collectively ("Payor"), jointly and
severally, promise to pay to the order of NAT AND XXXXXX
XXXXXX, TRUSTEES OF THE NAT AND XXXXXX XXXXXX FAMILY TRUST
dated March 18, 1993 ("Payee"), the principal sum of SIX
HUNDRED TWENTY FIVE THOUSAND DOLLARS ($625,000.00), with
interest on the unpaid principal balance at the rate of ten
percent (10%) per annum. Principal and interest shall be
payable as follows:
(1) On or before January 12, 1998, the sum of
Sixteen Thousand Dollars ($16,000.00) which
represents interest for the period from the
date hereof through March 12, 1998, shall be
due and payable.
(2) On or before January 17, 1998, a principal
payment in the sum of Twenty Five Thousand
Dollars ($25,000.00) shall be due and
payable.
(3) On or before each of April 12, 1998, May 12,
1998, June 12, 1998 and July 12, 199a, a
principal payment in the amount of One
Hundred Fifty Thousand Dollars ($150,000.00)
and all accrued interest computed on the
declining principal balance.
B. Principal and interest shall be payable in lawful money of the
United States at the offices of payee in Beverly Hills, California, or such
other place as the Payee of this Note may, from time to time, designate to the
Payor in writing.
C. Each of the following events shall constitute an "Event of
Default" under this Note:
(1) The failure of the Payor to pay any installment of
principal or interest on this note when the same becomes due and payable.
(2) The occurrence of a default or breach of any term or
provision under the Security Agreement (as defined below) securing this Note.
(3) The Payor shall make an assignment for the benefit of
creditors.
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(4) The Payor shall petition or apply to any tribunal for
appointment of a trustee or receiver of the Payors or commence any proceeding
relating to the Payors under any bankruptcy or reorganization statute or any
provision of the Bankruptcy Code, or under any arrangement, insolvency,
readjustment or debt, dissolution or liquidation law or any jurisdiction,
whether now or hereafter in effect.
(5) If any petition or application of the type described
above is filed or any proceedings of the type described in Subparagraph (4)
above are commenced against the Payor, and the Payor by any act indicate their
approval thereof, consent thereto or acquiescence therein, or an order is
entered appointing any such trustee or receiver, or adjudicating the Payor
bankrupt or insolvent, or approving the petition in any such proceeding, and
any such order remains in effect for more than ninety (90) days.
D. Should an Event of Default occur, the Payee of this Note may,
without notice to the Payor, declare the whole sum of principal and interest to
be, and thereafter the whole sum of principal and interest shall forthwith
become, due and payable. Should interest not be paid when due, it shall
thereafter bear like interest as the principal, but such unpaid interest so
compounded shall not exceed an amount equal to simple interest on the unpaid
principal at the maximum rate permitted by law. The failure to exercise, in
case of one or more Events of Default, any right or remedy given in this
paragraph shall not preclude the Payee of the Note from exercising any right or
remedy given in this paragraph in case of one or more subsequent Events of
Default.
E. Any payment on account of this Note shall be applied first to
accrued interest and then to principal.
F. Any notice, request, demand, instruction or other
communication to be given to any party hereunder shall be in writing and sent
by registered or certified mail as follows:
If to Payee: Nat and Xxxxxx Xxxxxx, Trustees of the
Nat and Xxxxxx Xxxxxx Family Trust
dated March 18, 1993
c/o 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
With a copy to: Xxxxx X . Xxxxx, Attorney at Law
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
If to Payor: Angeles Acquisition Corporation
00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
With a copy to: Xxxx X. Xxxxxxxx, Esq.
Xxxxx & Xxxxxxxxxx
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
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All notices shall be effective upon delivery or on the date delivery is refused
by the receiving party. Either party may change its notice address upon
written notice to the other parties. Unless and until such written notice is
received, the last address and addressee as stated by written notice, or
provided herein if no written notice of change has been sent or received, shall
be deemed to continue in effect for all purposes hereunder.
G. No course of dealing between the Payor and the Payee of this
Note and no delay on the part of the Payee of this Note in exercising any
rights under this Note shall operate as a waiver of the rights of the Payee of
this Note. No covenant or other provision of this note nor any default or
Event of Default in connection therewith may be waived otherwise than by a
written instrument signed by the party so waiving such covenant or other
provision or default or Event of Default; provided, however, that no such
waiver shall extend to or impair any obligation no expressly waived or impair
any right consequent thereon. Any waiver may be given subject to satisfaction
of conditions stated therein.
H. All covenants and agreements herein shall be deemed material,
and shall bind the Payor successors and assigns, whether so expressed or not,
and all such covenants and agreements shall inure to the benefit of the Payee
and its nominees, successors and assigns, whether so expressed or not.
I. No extension of time for the payment of this Note or any
installment hereof made by agreement with any person nor or hereafter liable
for the payment of this Note shall operate to release, discharge, modify,
change or affect the original liability under this Note, either in whole or in
part, of the Payor.
J. Payor and each surety, guarantor and endorser, if any, jointly
and severally and to the extent permitted by law, waive, demand, presentment
for payment, notice of dishonor, protest and notice of protest; waive any and
all lack of diligence or delays in the collection or enforcement hereof; and
consent that the time of payment may be extended or this Note may be renewed
without notice and without releasing the Payor or any such surety, or endorser.
K. If the Payee of this Note refers it to an attorney for
collection or seeks legal advice for default under this Note or under the
Security Agreement securing this Note, or if an action is instituted on this
Note, or if any other judicial or nonjudicial action is instituted by the Payee
hereof or by any person, and an attorney is employed by the Payee hereof to
appear in any action or proceeding or to reclaim, sequester, protect, preserve
or enforce the Payee's interest in the real property security or any other
security for this Note, including, but not limited to, proceedings to foreclose
the loan evidenced hereby, proceedings under the Federal Bankruptcy Code, or in
eminent domain, or under the Probate Code, or in connection with any state or
federal tax lien, or to enforce an assignment of rents, or from the appointment
of a receiver, the Payor and every endorser and guarantor hereof, and every
person who assumes the obligations evidenced by this Note, jointly and
severally promise to pay reasonable attorneys' fees for services performed by
the Payee's attorneys and paralegals and all costs and expenses incurred
incident to such employment.
L. Any interest rate provided hereunder which exceeds the maximum
rate provided by applicable law shall instead be deemed to be such maximum rate
and interest in excess of such maximum rate paid to payee shall be applied to
reduce the principal balance of this Note, so that, in no event shall Payee
receive or be entitled to receive interest in excess of the maximum amount
permitted by applicable law.
M. The Payor waives the benefits of any valuation or appraisement
rights as against such debt.
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N. The Note is secured by a Collateral Security Agreement
("Security Agreement") dated of even date herewith in favor of Payee.
O. Principal and interest may be prepaid in whole or in part at
any time without penalty.
P. It would be impractical or extremely difficult to fix the
amount of extra expenses involved in handling a delinquent payment if any
installment shall not be paid when due. Accordingly, Payor agrees to pay to
Payee, to cover extra expenses incurred by Payee in handling the delinquent
payment, a late charge of six percent (6%) of the installment due, which Payee
agrees is a reasonable estimate of the extra expenses Payee will incur if there
is a late payment. The late payment charge shall be imposed if all or any part
of any installment is not received by Payee within ten (10) days after the
mailing by Payee of a notice of the delinquency or default. Nothing in this
Paragraph shall limit Payee's rights to exercise any other rights or remedies
available to Payee.
Q. Reference in this Note to "Holder" or "Holder(s)" shall mean
the original Holder hereunder of this Note and thereafter, shall mean any
subsequent Holder or Holders of this Note.
R. Upon receipt of evidence reasonably satisfactory to Payor, of
the loss, theft, destruction or mutilation of this note, and in the case of any
such loss, theft or destruction, upon delivery of an indemnity agreement
reasonably satisfactory to Payor, or in the case of any such mutilation, upon
surrender and cancellation of this Note, Payor will execute and deliver to
Payee in lieu thereof, a replacement note dated as of the date of this note,
identical in form and substance to this Note and upon such execution and
delivery all references in the Security Agreement to this note shall be deemed
to refer to such replacement note.
ANGELES ACQUISITION CORPORATION
BY /s/ Xxxxxxxxx Xxxx
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Name Xxxxxxxxx Xxxx
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Title Chief Executive Officer
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CONSOLIDATED CAPITAL CORPORATION
OF NORTH AMERICA, INC.
BY /s/ Xxxxxxxxx Xxxx
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Name Xxxxxxxxx Xxxx
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Title Chief Executive Officer
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