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10.159
ADDITIONAL ADVANCE NOTE
[ALOHA BAY PHASE I]
U.S. $600,000.00 November ___, 1998
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Maker"), promises to pay to FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), or order, at such place as the
holder of this Note ("Holder") may from time to time designate in writing, in
lawful money of the United States of America, the principal sum of SIX HUNDRED
THOUSAND AND NO/100 DOLLARS (U.S. $600,000.00), or so much thereof as has been
disbursed and not repaid, together with interest on the unpaid principal balance
from time to time outstanding from the date hereof until paid, as more fully
provided for below.
Interest due under this Note shall (a) accrue daily on the basis
of the actual number of days in the computation period, (b) be calculated on the
basis of a year consisting of three hundred sixty (360) days, and (c) be payable
monthly in arrears on the later of (i) ten (10) days after Lender mails an
invoice or statement therefor to Maker or (ii) the due date set forth in said
invoice or statement. Interest shall accrue initially at an annual interest rate
("Initial Interest Rate") equal to Prime (as hereinafter defined) in effect on
the date of the initial advance of the loan evidenced by this Note ("Initial
Prime") plus two and one quarter percent (2.25%) per annum, subject to
adjustment on each Interest Rate Change Date (as hereinafter defined), but in no
event to exceed the maximum contract rate permitted under the Applicable Usury
Law (as hereinafter defined). The interest rate shall change on each Interest
Rate Change Date by adding to or subtracting from the Initial Interest Rate, as
the case may be, the change, if any, between Initial Prime and Prime in effect
on the applicable Interest Rate Change Date. As used in this Note, the following
capitalized terms have the meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly announced, from
time to time, by ▇▇▇▇▇▇▇▇, N.A., New York, New York ("Citibank"),
as the corporate base rate of interest charged by Citibank to its
most creditworthy commercial borrowers notwithstanding the fact
that some borrowers of Citibank may borrow from Citibank at rates
of less than such announced Prime rate; and
"Interest Rate Change Date" means (a) the first business day of
Citibank, N.A., in New York, New York, during the calendar month
following the
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date of the initial advance of the loan evidenced by this Note
and (b) the first business day of Citibank, N.A., during each
successive month thereafter.
The principal sum of this Note shall be repaid in the manner set
forth in the Loan Agreement (as defined below), the applicable provisions of
which are incorporated herein by reference as if fully set forth herein.
Payments of principal and/or interest shall, at the option of
Holder, earn interest after they are due at a rate ("Overdue Rate") equal to (a)
two percent (2%) per annum above the rate otherwise payable hereunder or (b) the
maximum contract rate permitted under the Applicable Usury Law, whichever of (a)
or (b) is lesser. Furthermore, in the event of the occurrence of an Event of
Default (as the term "Event of Default" is defined in the Loan Agreement) the
unpaid principal balance of this Note shall, at the option of Holder, accrue
interest at the Overdue Rate.
This Note is executed pursuant to that certain Second Amended and
Restated and Consolidated Loan and Security Agreement dated as of May 15, 1997
herewith between Maker and Lender (such Second Amended and Restated and
Consolidated Loan and Security Agreement, as amended, the "Loan Agreement"). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Loan Agreement, the applicable provisions of which are
incorporated herein by reference.
All payments made under this Note shall be applied first against
amounts due hereunder or under the Loan Agreement, other than principal and
interest; second, against interest then due under this Note; and third, against
the principal of this Note.
In the event any installment of principal and/or interest
required to be made in connection with the indebtedness evidenced hereby is not
paid when due and, except in the case of the final installment, for which no
grace period is allowed, such default continues for five (5) days after notice
thereof to Maker or an Event of Default occurs, Holder may, at its option,
without notice or demand, declare immediately due and payable the entire unpaid
principal balance hereof, all accrued and unpaid interest thereon, and all other
charges owing in connection with the loan evidenced hereby.
The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the interest
rate, calculated and applied to the principal balance of this Note in accordance
with the provisions of this Note; (ii) Overdue Rate, calculated and applied to
the amounts due under this Note in accordance with the provisions hereof; (iii)
any commitment fees, incentive fees, loan fees or readvance fees payable under
the Loan Agreement; and (iv) all Additional Sums
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(as hereinafter defined), if any. Maker agrees to pay an effective contracted
for rate of interest which is the sum of the above-referenced elements.
All fees, charges, goods, things in action or any other sums or
things of value (other than amounts described in the immediately previous
paragraph), paid or payable by Maker (collectively, the "Additional Sums"),
whether pursuant to this Note, the Loan Agreement, the other Documents or any
other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction, shall
be payable by Maker as, and shall be deemed to be, additional interest, and for
such purposes only, the agreed upon and "contracted for rate of interest" of
this lending transaction shall be deemed to be increased by the rate of interest
resulting from the Additional Sums.
This Note is not prepayable in whole or in part other than as a
result of the application to the unpaid principal balance hereof of Aloha Bay
Phase I Release Fees arising from the release of Units from the Security
Interests.
In the event that Holder institutes legal proceedings to enforce
this Note and ▇▇▇▇▇▇ is the prevailing party in such proceeding, Maker agrees to
pay Holder, in addition to any indebtedness due and unpaid, all costs and
expenses of such proceedings, including, without limitation, attorneys' fees.
Holder shall not by any act or omission or commission be deemed
to waive any of its rights or remedies hereunder unless such waiver be in
writing and signed by an authorized officer of Holder and then only to the
extent specifically set forth therein; a waiver on one occasion shall not be
construed as continuing or as a bar to or waiver of such right or remedy on any
other occasion. All remedies conferred upon Holder by this Note or any other
instrument or agreement connected herewith or related hereto shall be cumulative
and none is exclusive and such remedies may be exercised concurrently or
consecutively at Holder's option.
Every person or entity at any time liable for the payment of the
indebtedness evidenced hereby waives: presentment for payment, protest and
demand; notice of protest, demand, dishonor and nonpayment of this Note; and
trial by jury in any litigation arising out of, relating to or connected with
this Note or any instrument given as security herefor. Every such person or
entity further consents that Holder may renew or extend the time of payment of
any part or the whole of the indebtedness at any time and from time to time at
the request of any other person or entity liable therefor. Any such renewals or
extensions may be made without notice to any person or entity liable for the
payment of the indebtedness evidenced hereby.
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This Note is given and accepted as evidence of indebtedness only
and not in payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's obligations
and agreements under this Note.
This Note and all of the provisions, conditions, promises and
covenants hereof shall be binding in accordance with the terms hereof upon
Maker, its successors and assigns, provided nothing herein shall be deemed
consent to any assignment restricted or prohibited by the terms of the Loan
Agreement. If more than one person or other entity has executed this Note as
Maker, the obligations of such persons and entities shall be joint and several.
This Note has been executed and delivered in Phoenix, Arizona,
and the obligations of Maker hereunder shall be performed in Phoenix, Arizona.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ARIZONA AND, TO
THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED STATES.
Maker (a) hereby irrevocably submits itself to the process, jurisdiction and
venue of the courts of the State of Arizona, Maricopa County, and to the
process, jurisdiction and venue of the United States District Court for Arizona,
for the purposes of suit, action or other proceedings arising out of or relating
to this Note or the subject matter hereof brought by ▇▇▇▇▇▇ and (b) without
limiting the generality of the foregoing, hereby waives and agrees not to assert
by way of motion, defense or otherwise in any such suit, action or proceeding
any claim that Maker is not personally subject to the jurisdiction of the
above-named courts, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper.
It is the intent of the parties to comply with the usury law
("Applicable Usury Law") applicable pursuant to the terms of the preceding
paragraph or such other usury law which is applicable if the law chosen by the
parties is not. Accordingly, it is agreed that notwithstanding any provisions to
the contrary in this Note, or in any of the documents securing payment hereof or
otherwise relating hereto, in no event shall this Note or such documents require
the payment or permit the collection of interest in excess of the maximum
contract rate permitted by the Applicable Usury Law. In the event (a) any such
excess of interest otherwise would be contracted for, charged or received from
Maker or otherwise in connection with the loan evidenced hereby, or (b) the
maturity of the indebtedness evidenced by this Note is accelerated in whole or
in part, or (c) all or part of the principal or interest of this Note shall be
prepaid, so that under any of such circumstance the amount of interest
contracted for, shared or received in connection with the loan evidenced hereby,
would exceed the maximum contract rate permitted by the Applicable Usury Law,
then in any such event (1) the
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provisions of this paragraph shall govern and control, (2) neither Maker nor any
other person or entity now or hereafter liable for the payment hereof will be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum contract rate permitted by the Applicable Usury Law, (3) any such
excess which may have been collected shall be either applied as a credit against
the then unpaid principal amount hereof or refunded to Maker, at Holder's
option, and (4) the effective rate of interest will be automatically reduced to
the maximum amount of interest permitted by the Applicable Usury Law. It is
further agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law: (x) all calculations of interest
which are made for the purpose of determining whether such rate would exceed the
maximum contract rate permitted by the Applicable Usury Law shall be made by
amortizing, prorating, allocating and spreading during the period of the full
stated term of the loan evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise in connection with such loan;
and (y) in the event that the effective rate of interest on the loan should at
any time exceed the maximum contract rate allowed under the Applicable Usury
Law, such excess interest that would otherwise have been collected had there
been no ceiling imposed by the Applicable Usury Law shall be paid to Holder from
time to time, if and when the effective interest rate on the loan otherwise
falls below the maximum amount permitted by the Applicable Usury Law, to the
extent that interest paid to the date of calculation does not exceed the maximum
contract rate permitted by the Applicable Usury Law, until the entire amount of
interest which would have otherwise been collected had there been no ceiling
imposed by the Applicable Usury Law has been paid in full. Maker further agrees
that should the maximum contract rate permitted by the Applicable Usury Law be
increased at any time hereafter because of a change in the law, then to the
extent not prohibited by the Applicable Usury Law, such increases shall apply to
all indebtedness evidenced hereby regardless of when incurred; but, again to the
extent not prohibited by the Applicable Usury Law, should the maximum contract
rate permitted by the Applicable Usury Law be decreased because of a change in
the law, such decreases shall not apply to the indebtedness evidenced hereby
regardless of when incurred.
In the event of any conflict or inconsistency between the
provisions of this Note and the provisions of the Loan Agreement, the provisions
of the Loan Agreement shall control.
[SIGNATURE ON FOLLOWING PAGE]
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PREFERRED EQUITIES CORPORATION,
a Nevada corporation
"Maker"
By: ____________________________________
Name: ______________________________
Title: ___________________________
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: President
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