EXHIBIT 10.4
PROMISSORY NOTE
SECURED BY DEED OF TRUST
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$,000.00
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Las Vegas, Nevada
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, 2003
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This Promissory Note
(“Note”) is executed pursuant to the Construction Loan
Agreement (the “Loan Agreement”), dated as of, 2003,
(“Borrower”), and (“Lender”). Capitalized
terms used herein and not otherwise defined herein shall have the
meanings set forth in the Loan Agreement.
FOR VALUE RECEIVED, Borrower
promises to pay to Lender, or order, the principal sum of Dollars
($,000.00) (the “Note Amount”), as provided in the Loan
Agreement, together with interest as provided herein. Pursuant to
the Construction Loan Agreement of even date herewith, the loan
amount shall be disbursed in installments as follows:
1. Interest Rate . Interest
shall accrue on the full Note Amount, from the date the Deed of
Trust is recorded until the date the Note Amount is paid in full,
at the rate of percent (%) per annum. Interest shall be calculated
on the basis of a 360-day year and actual days elapsed. Accrued but
unpaid interest shall be compounded monthly.
2. Payments . Monthly
interest on the Note Amount shall be due and payable on the first
day of each month, in advance. For example, interest that would
accrue in the month of May will be due and payable on May 1, and
will be calculated on the amount due under the Note on that day.
Provided no Event of Default is then existing, at the time any
principal amount of the Loan is repaid, the next interest payment
(or the final principal payment that fully repays the Loan) shall
be reduced by the excess prepaid interest, if any All payments
shall be made in lawful money of the United States of America and
in immediately available funds at Lender’s office, the
address for which is specified in the Loan Agreement, or at such
other place as the holder hereof may from time to time direct by
written notice to Borrower.
3. Maturity Date . The term
of this Note shall be for a period of XX (X) months from the date
the entire Loan Amount and documents needed to close the Loan are
deposited with the Title Company. If not sooner paid, the
outstanding principal balance under this Note, all accrued and
unpaid interest, and all other indebtedness of Borrower owing under
any and all of the Loan Documents shall be due and payable in full
on the Maturity Date.
4. Application of Payments .
All payments on this Note shall, at the option of the holder
hereof, be applied first to the payment of accrued interest then
payable. This Note is entitled to all of
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the rights, benefits and privileges provided for
in the Loan Agreement as it may from time to time be supplemented,
modified or amended. The Loan Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
5. Prepayment . Maker agrees
that all loan fees and any prepaid finance charges are fully earned
as of the date hereof and will not be subject to refund upon early
payment (whether voluntary or as a result of default). Subject to
the foregoing, at any time prior to the Maturity Date, Maker may
prepay this Note in part or in full without penalty.
6. Collateral . This Note is
secured by (1) the Deed of Trust (the “Deed of Trust”)
executed by Borrower, as trustor, in favor of Lender, as
beneficiary, covering certain real property located in the County
of Clark, State of Nevada (the “Property”), and (2) all
other existing and future Security Documents.
7. Defaults; Acceleration .
The occurrence of any Event of Default as defined in the Loan
Agreement shall be a default hereunder. Upon the occurrence of an
Event of Default, Lender may declare the entire principal of the
Note then outstanding (if not then due and payable thereunder) and
all other obligations of Borrower hereunder and under the Loan
Documents, to be due and payable immediately, and, subject to
applicable provisions of law, upon any such declaration the
principal of the Note and accrued and unpaid interest, and all
other amounts to be paid under the Note, the Deed of Trust or any
other Loan Document shall become and be immediately due and
payable, anything in this Note or in the Deed of Trust to the
contrary notwithstanding.
8. Late Charge . Borrower
acknowledges that if any interest payment is not made when due or
if the entire amount due under this Note is not paid by the
Maturity Date or, if accelerated as permitted by this Note or any
other Loan Document, by the payment date given in the acceleration
notice, the holder hereof will incur extra administrative expenses
( i.e. , in addition to expenses incident to receipt of
timely payment) and the loss of the use of funds in connection with
the delinquency in payment. Because the actual damages suffered by
the holder hereof by reason of such extra administrative expenses
and loss of use of funds would be impracticable or extremely
difficult to ascertain, Borrower agrees that five percent (5%) of
the amount so delinquent shall be the amount of damages to which
such holder is entitled, upon such breach, in compensation
therefor. Therefore, Borrower shall, in the event any payment
required under this Note is not paid within five (5) days after the
date when such payment becomes due and payable pursuant to Sections
2 and 3, above, and without regard to any default notice under
Section 7, and without further notice, pay to the holder hereof as
such holder’s sole monetary recovery to cover such extra
administrative expenses and loss of use of funds, liquidated
damages in the amount of five percent (5%) of the amount of such
delinquent payment. The provisions of this paragraph are intended
to govern only the determination of damages in the event of a
breach in the performance of the obligation of Borrower to make
timely payments hereunder, including the timely payment of any
accelerated amount. Nothing in this Note shall be construed as an
express or implied agreement by the holder hereof to forbear in the
collection of any delinquent payment or in exercising any of its
rights and remedies under the Loan Documents, or be construed as in
any way giving Borrower the right, express or implied, to fail to
make timely
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payments hereunder, whether upon payment of such
damages or otherwise. The right of the holder hereof to receive
payment of such liquidated and actual damages, and receipt thereof,
are without prejudice to the right of such holder to collect such
delinquent payments and any other amounts provided to be paid
hereunder or under any security for this Note or to declare a
default hereunder or under any security for this Note.
9. Default Rate . From and
after the Maturity Date or, if any Event of Default occurs and is
not timely cured, from the date the payment was due regardless of
any cure period provided in the notice of default, through and
including the date such default is cured, at the option of the
holder hereof, all amounts owing
