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Exhibit 10.1
PROMISSORY NOTE SECURED BY DEED OF TRUST
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$27,250,000.00
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August 22, 2008
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FOR VALUE RECEIVED, FLEETWOOD MOTOR HOMES OF
CALIFORNIA, INC. , a California corporation (" Riverside
Borrower ") and FLEETWOOD HOMES OF CALIFORNIA, INC. , a
California corporation (" Woodland Borrower ", together with
Riverside Borrower, collectively and in the singular and jointly
and severally, " FLE Borrower "), promises to pay to ISIS
LENDING, LLC , a Delaware limited liability company ("
Lender "), or order, as hereinafter provided, the principal
sum of Twenty Seven Million Two Hundred Fifty Thousand and No/100
Dollars ($27,250,000.00) (" Principal Sum "), plus
interest on the unpaid principal balance thereof payable at the
Interest Rate (defined below).
1.
Definitions .
(a)
"2 Year Treasury Rate" means, as of any date of determination, as
determined by Lender, the annual percentage yield on U.S. Treasury
securities maturing two (2) years from such date of
determination (the "Annual Treasury Instrument Yield"). The
Lender shall base its determination of the Annual Treasury
Instrument Yield on the yield on U.S. Treasury instruments, as
published in The Wall Street Journal (or, if The Wall Street
Journal is not then being published or if no such reports are then
being published in The Wall Street Journal, as reported in another
public source of information nationally recognized for accuracy in
the reporting of the trading of governmental securities). If
no such instruments mature on the exact second (2 nd )
year anniversary of such date of determination, the Lender shall
interpolate the Annual Treasury Instrument Yield on a straight-line
basis using the yield on the instrument whose maturity date most
closely precedes the second (2 nd ) yearly anniversary
of such date of determination, and the yield on the instrument
whose maturity date most closely succeeds the second (2
nd ) yearly anniversary of such date of
determination.
(b)
"Business Day" means any day except Saturdays, Sundays and days on
which banks in San Francisco, California are required to be closed
pursuant to federal or state law.
(c)
"Closing Date" means the date of recordation of the Deed of Trust
in the appropriate public records where each of the Riverside
Property and Woodland Property is located.
(d)
"Deed of Trust" means collectively as referred to herein from time
to time, the Riverside Deed of Trust, and the Woodland Deed of
Trust, as each may be modified, amended or supplemented from time
to time
(e)
"Default Rate" shall have the meaning set forth in
Section 13 below.
(f)
"Excess Interest" shall have the meaning set forth in
Section 18 below.
(g)
"Exit Fee" shall have the meaning set forth in
Section 4 below.
(h)
"Extended Maturity Date" means, (i) with respect to the
exercise of the first Extension Option, if applicable, the fourth
(4 th ) yearly anniversary of the date of this Note, and
(ii) with respect to the exercise of the second Extension
Option, if applicable, the fifth (5 th ) yearly
anniversary of the date of this Note.
(i)
"Extension Period" shall have the meaning set forth in
Section 3 below.
(j)
"Extension Option" shall have the meaning set forth in
Section 3 below.
(k)
"FLE Borrower" shall have the meaning set forth in the preamble
above.
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(l)
"Initial Term" shall mean the period commencing as of the date
hereof and through and including the Maturity Date.
(m)
"Interest Rate" shall mean (i) during the Initial Term, a rate
equal to Nine and Ninety Five Hundredths of One Percent (9.95%) and
(ii) during any Extension Period, the higher of (a) Nine
and Ninety Five Hundredths of One Percent (9.95%) or (b) the 2
Year Treasury Rate plus five percent (5.00%) per annum.
(n)
"Lender" shall have the meaning set forth in the preamble
above.
(o)
"Loan" shall have the meaning set forth in Section 2
below.
(p)
"Maturity Date" means the third (3 rd ) yearly
anniversary of the date of this Note.
(q)
"Note" means this Promissory Note Secured by the Riverside Deed of
Trust and the Woodland Deed of Trust, as may be modified, amended
or supplemented from time to time.
(r)
"Origination Fee" shall have the meaning set forth in
Section 4 below.
(s)
"Prepayment Fee" shall have the meaning set forth in
Section 14 below.
(t)
"Principal Sum" shall have the meaning set forth in the preamble
above.
(u)
"Property" means, collectively, the Riverside Property and the
Woodland Property; those certain real properties located in the
Counties of Riverside and Yolo, respectively, State of California,
and each of which more particularly described on
Exhibit A to the Riverside Deed of Trust and Woodland
Deed of Trust, respectively.
(v)
"Riverside Deed of Trust" means that certain Deed of Trust,
Assignment of Leases and Rents, Security Agreement and Fixture
Filing of even date herewith executed by Riverside Borrower, for
the benefit of Lender, covering certain real property described in
Exhibit A therein, situated in the County of Riverside,
State of California, as the same may be modified, amended or
supplemented from time to time.
(w)
"Riverside Property" shall mean those certain real properties, each
located in the County of Riverside, State of California, which are
located at the following addresses, each of which is more
particularly described on Exhibit A to the Riverside
Deed of Trust:
(i)
2350 Fleetwood Drive, Riverside, California ("Riverside Fleetwood
Property");
(ii)
5300 Via Ricardo ("Riverside Via Ricardo Property"); and
(iii) 5425
Wilson Street ("Riverside Wilson Property").
(x)
"Woodland Deed of Trust" means that certain Deed of Trust,
Assignment of Leases and Rents, Security Agreement and Fixture
Filing of even date herewith executed by Woodland Borrower, for the
benefit of Lender, covering certain real property described in
Exhibit A therein, situated in the County of Yolo,
State of California, as the same may be modified, amended or
supplemented from time to time.
(y)
"Woodland Property" shall mean that certain real property located
in the County of Yolo, State of California, and more particularly
described on Exhibit A to the Woodland Deed of
Trust.
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2.
Payment of Interest and Principal . Interest payable
under this Note shall be equal to the interest accruing from time
to time at the Interest Rate (or if and when applicable hereunder,
the Default Rate) on the principal balance from time to time
outstanding under this Note from and after the date of this Note
until paid in full. Interest shall be payable at closing for
the period from the date of this Note up to the first (1
st ) day of the first (1 st ) calendar month
following the Closing Date. Commencing on the first (1
st ) day of the second (2 nd ) calendar month
following the Closing Date, and on the first (1 st ) day
of each calendar month thereafter through the initial Maturity
Date, FLE Borrower shall pay to Lender a monthly payment of
principal and interest in an amount equal to Two Hundred Forty One
Thousand Fifty Five and 56/100 Dollars ($241,055.56). Such
monthly payment shall be applied first to any accrued and unpaid
interest and thereafter to principal. In the event that the
initial Maturity Date is extended for one or more Extension Periods
as provided in Section 3 below, the amount of the monthly
payment shall be adjusted as determined by Lender to reflect any
increase in the applicable Interest Rate and FLE Borrower shall pay
the amount of such adjusted monthly payments. Following the
Maturity Date, or Extended Maturity Date, as applicable, or
otherwise as provided in Section 13 hereof, interest shall
accrue under this Note at the Default Rate. If not sooner
paid, the balance of the principal and all accrued and unpaid
interest shall be all due and payable on the Maturity Date, or, if
earlier, upon any earlier of the date of acceleration of the
indebtedness evidenced by this Note ("Loan") pursuant to the terms
of this Note or each of the Riverside Deed of Trust and Woodland
Deed of Trust (as each is defined below). FLE Borrower
acknowledges that, since the term of the Loan is shorter than the
amortization period, a substantial portion of the principal balance
will be due on the Maturity Date or the Extended Maturity Date, as
applicable, or if earlier, upon any earlier of the date of
acceleration of the Loan pursuant to the terms of this Note or each
respective Deed of Trust. Interest accrued hereunder shall be
payable on demand and shall be calculated on the basis of the
actual number of days elapsed on a three hundred sixty (360) day
year, which results in higher interest than if a three hundred
sixty five (365) day year were used.
3.
Extension Option . FLE Borrower shall have the option
to extend the term of the Loan beyond the initial Maturity Date for
two (2) successive terms (each, an "Extension Option") of one
(1) year each (each, an "Extension Period") on the terms and
conditions set forth herein. In order to exercise each
Extension Option, (i) no default shall have occurred and be
continuing under this Note or the Deed of Trust, (ii) FLE
Borrower must deliver to Lender irrevocable written notice of the
election to exercise each Extension Option not less than forty-five
(45) days nor more than ninety (90) days prior to the Maturity
Date, and (iii) FLE Borrower must pay to Lender an extension
fee equal to One Half of One Percent (0.5%) of the then-outstanding
principal amount of the Loan prior to the commencement of each
applicable Extension Period. If FLE Borrower fails to
exercise either Extension Option strictly in accordance with the
provisions of this Section 3 , then such Extension
Option shall automatically cease and terminate.
4.
Origination Fee; Exit Fee . Upon execution of this
Note and the Deed of Trust, FLE Borrower shall pay to Lender a
non-refundable loan origination fee (the "Origination Fee") in an
amount equal to One and One Quarter of One Percent (1.25%) on the
Principal Sum, which FLE Borrower acknowledges is reasonable under
the circumstances and is fully earned by Lender upon receipt.
From and after the date of this Note there is owing an exit fee in
an amount equal to Three Quarters of One Percent (0.75%) of the
Principal Sum ("Exit Fee"), which Exit Fee is payable on the
earliest to occur of (i) payment or prepayment of the Loan in
full, (ii) the Maturity Date or Extended Maturity Date, as
applicable, or (iii) acceleration of this Note;
provided that , if from time to time FLE Borrower
shall make any partial payment of principal then outstanding under
the Loan (other than partial payments of principal consisting of
scheduled monthly principal amortization payments), then
concurrently with such partial payment, FLE Borrower shall be
obligated to pay to Lender, in respect of FLE Borrower’s Exit
Fee payment obligation, an amount equal to the product of
(x) the amount of the partial principal payment so paid, times
(y) Three Quarters of One Percent (3/4%), which Exit Fee
payment(s) made by FLE Borrower shall be credited against FLE
Borrower’s Exist Fee obligations owing to Lender. The
Exit Fee is in addition to any Prepayment Fee.
5.
Security for the Loan . The Loan and the obligations
created hereunder are secured by, among other things, (i) that
certain Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing of even date herewith executed by Riverside Borrower
in favor of Lender (as the same may be modified, amended or
supplemented from time to time, the "Riverside Deed of Trust") and
(ii) that certain Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing of even date herewith executed by
Woodland Borrower in favor of Lender (as the same may be modified,
amended or supplemented from time to time, the "Woodland Deed of
Trust"; the Riverside Deed of Trust and the Woodland Deed of Trust,
as each may be modified, amended or
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supplemented from time to time hereafter, are
sometimes hereinafter referred to individually and collectively as
the "Deed of Trust") The Deed of Trust, together with this
Note, and all other documents to or of which Lender is a party or
beneficiary now or hereafter evidencing, securing, guaranteeing,
modifying or otherwise relating to the indebtedness evidenced
hereby, are herein referred to collectively as the "Loan
Documents". All of the terms of the Loan Documents are
incorporated herein by reference. So
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