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EXHIBIT 4.10
PROMISSORY NOTE SECURED BY DEED OF TRUST
(Interest Only for Year 1)
(Principal and Interest for Years 2 and 3)
The loan which this note secures was arranged by OWENS FINANCIAL GROUP, INC., a
licensed California Real Estate Broker.
$690,000.00 Walnut Creek, California
October 11, 1994
FOR VALUE RECEIVED, the undersigned, PROST PARTNERS, L.P., a California Limited
Partnership and GARITH L. HELM, Individually ("Maker"), promises to pay to OWENS
FINANCIAL GROUP, INC., a California Corporation, or order ("Payee"), at P.O. Box
2308, Walnut Creek, California 94595, or at any other place that Payee
designates by notice to Maker, the sum of Six Hundred Ninety Thousand and no/100
($690,000.00) in United States Dollars, plus interest on the unpaid balance at
the rate of eleven (11%) percent per annum from November 30, 1994 payable as set
forth in Section 1 below.
1. MONTHLY PAYMENTS
a. Interest Only Payments. Beginning on January 1, 1995 and continuing
on the first day of each and every month thereafter, through and including
October 1, 1995, Maker shall make interest only monthly payments at the rate set
forth above on the unpaid principal balance.
b. Principal and Interest Payments. Beginning on November 1, 1995 and
continuing each and every month thereafter. Maker shall make monthly payments of
principal and interest in the amount of $8,154.50 which will amortize (fully pay
and discharge) the principal and accrued interest over a period of 164 months.
Monthly payments are to be applied first to interest against the unpaid
principal and then to principal.
c. Final Payment. The unpaid principal balance, together with all
accrued and unpaid interest, shall be due and payable on
November 30, 1997 ("Maturity Date").
2. BORROWER'S RIGHT TO PREPAY
Maker has the right to make prepayments of the entire principal balance
or any portion thereof with a -0- prepayment
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penalty on the amount so prepaid. The additional charge for prepayment shall
never exceed the amount of interest due at the maturity of this note. A payment
of principal only is known as a "prepayment."
3. USURY LIMITATION
Notwithstanding anything in this note to the contrary, to the extent
the interest payments are subject to limitation by usury law, that portion of
the interest paid that is subject to and exceeds applicable usury limitations
shall be applied to reduce the principal due under the note.
4. DEFAULTS
a. Events of Default. Maker shall be in default of this note upon the
occurrence of any of the following:
(i) Failure of Maker to make any payments, under this note,
when due;
(ii) Failure of Maker to perform or observe any of Maker's
obligations under this note, the deed of trust securing this note (the "Deed of
Trust") or other agreements between the parties; and to commence and proceed
diligently to cure the default within five (5) days after notice is given by
Payee, and in any event to cure the default within ten (10) days after the date
on which notice is given;
(iii) Maker's Sale, transfer and/or assignment of the Security
as provided for in Paragraph 9 of this Promissory Note.
(iv) The filing by Maker of a voluntary petition in
bankruptcy, a petition for reorganization, arrangement or other relief under the
United States Bankruptcy Act, or a voluntary petition for the appointment of a
receiver or comparable relief from creditors under the laws of any state, or the
making by Maker of an assignment of all or substantially all of its assets for
the benefit of creditors;
(v) The adjudication of Maker as bankrupt or insolvent, the
appointment of a receiver of all or substantially all of Maker's assets, or the
entry of an order of reorganization of Maker under the United States Bankruptcy
Act;
b. When Maker is in default, the entire unpaid balance of interest and
principal of this note shall become immediately due and payable at the election
of payee.
5. ATTORNEYS FEES AND COLLECTION COSTS
In the event that Payee should, prior to commencement of any
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legal action, incur any expenses or attorneys fees in enforcing the terms and
conditions of the Note or Deed of Trust; or upon the commencement of Arbitration
proceedings; or if legal action is instituted to enforce the terms of the Note;
or upon any default by Maker and/or any other person liable on this Note and/or
Deed of Trust, Payee shall be entitled to recover from Maker all costs of
collection and enforcement, including reasonable attorneys fees. For purposes of
this section, the award and recovery of attorneys fees shall survive the entry
of any judgment thereon and shall include, without limitation, fees incurred in
the following: (1) Post Judgment Motions; (2) Contempt Proceedings; (3)
Garnishment, levy, debtor and third party examinations; (4) Discovery; (5)
Bankruptcy proceedings or other litigation; and (6) appeals.
6. LATE CHARGES AND ADDITIONAL INTEREST ON DELINQUENT PRINCIPAL
BALANCE/PAYMENTS
a. Late Charge. Maker recognizes that his default in making the
payment(s) required herein, or pursuant to the deed of trust and/or other
agreements, when due, will result in Payee incurring additional expenses in
servicing the loan, including, but not limited to, reasonable administrative,
processing and accounting charges. If any installment or payment of principal
and/or interest, including balloon payment, if any, due under this note or any
amount due under the deed of trust is not received by Payee within ten (10) days
from the due date of such installment and/or payment, Payee shall be entitled to
damages for the extra time and expense incurred in handling the delinquent
account, but since it is extremely difficult and impractical to ascertain the
extent of such damages, Maker therefore agrees that a reasonable estimate of
such damages to payee is an amount equal to Ten (10%) percent of each payment
which becomes delinquent, but such amount shall not exceed the maximum amount
allowed by law. By placing his initials at the end of this paragraph, Maker
therefore agrees to pay to Payee this late charge not later than the due date of
the next payment and that the late charge(s) shall be secured by the security
documents referred to herein. [Initialed]
b. Additional Interest on Delinquent Principal Balance/Payments, Etc.
Maker recognizes that upon Maker's failure to pay the principal balance upon
maturity, or any portion thereof as otherwise required by the terms of this
note, and/or other payments required to be made by Maker when due, other than
the regular monthly installments, or if Payee makes advances on behalf
of Maker, said failure(s) to pay and/or reimburse Payee for advances will result
in the loss of Payee's use of the money, other administrative expenses, and in
frustration to Payee in meeting its loan commitments.
Payee shall be entitled to damages for the detriment caused thereby,
but since it is extremely difficult and impractical to ascertain the extent of
such damages, Maker therefore agrees that
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a reasonable estimate of such damages to Payee is an amount equal to interest on
the delinquent and/or advanced amounts from the due date or date of such advance
until paid in full at the rate of Three (3%) percentage points above the
interest rate in effect under this note at the time of any such delinquency or
default. Said amount shall be secured by the security documents referred to
herein. By placing his initials at the end of this Paragraph, Maker hereby
agrees to pay the additional interest provided for in this Paragraph.
[Initialed]
7. INTEREST COMPUTATION
All interest required to be paid pursuant to the terms of this Note
shall be computed on the basis of a three hundred sixty (360) day year.
8. REMEDIES CUMULATIVE
The rights and remedies of Payee under this Note, the Deed of Trust,
and any other instrument or document securing this note are cumulative and may
be pursued singly, successively, or together against Maker, or the property, and
against any other funds or security held by Payee for Maker.
9. SALE, TRANSFER AND/OR ASSIGNMENT OF THE SECURITY
If any part of the real property described in the Deed of Trust given
as security for this Note shall be sold, transferred or assigned or agreed to be
sold, or transferred or assigned, or if Maker exercises its option to purchase
the real property described in the Deed of Trust, as provided for in the Lease,
whether voluntary or involuntary or by operation of law, then this Note shall,
at the option of the Payee, become immediately due and payable.
10. GOVERNING LAW
This Note shall be governed by and construed in accordance with the
laws of the State of California.
11. NOTICES
All notices and other communications to be made pursuant to this Note
shall be in writing and shall be deemed to have been duly given on the date of
service, if served personally on the party to whom service is given, or on the
expiration of forty-eight (48) hours after mailing, if mailed to the party to
whom notice is to be given, by first-class mail, postage prepaid, and properly
addressed as follows:
PROST PARTNERS, L.P.
A California Limited Partnership
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c/o Garith L. Helm
821 L Street
Modesto, CA 95354
STANISLAUS BREWING CO.
821 L Street
Modesto, CA 95354
Randall Lyle Steele and Susan Steele
c/o Sid Israels
1130 14th Street
Modesto, CA 95353
12. SEVERABILITY
If any part of this Note is determined to be illegal or unenforceable,
all other parts shall remain in effect.
13. NO WAIVER
Failure of Payee to pursue any right or remedy under this Note shall
not constitute a waiver, release or election of Payee's right to pursue the
right or remedy on the basis of the same or subsequent breach.
14. JOINT AND SEVERAL LIABILITY
These obligations and promises shall be joint and several undertakings
of each of the persons signing as Maker, and Payee may proceed against any one
or more of these persons without waiving its right to proceed against any of the
others.
15. RECONVEYANCE
Upon payment of all amounts owing on this Note, Payee shall instruct
the Trustee under the Deed of Trust securing this Note to reconvey the property
from the lien of the Deed of Trust.
16. DEED OF TRUST
This Note is secured by a Deed of Trust of even date executed by PROST
PARTNERS, L.P., a California Limited Partnership, and an assignment of interest
in a lease and sub-lease of even date executed by the undersigned and STANISLAUS
BREWING CO., a California Corporation in favor of Payee.
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IN WITNESS WHEREOF, Maker has signed and delivered this Note effective as of the
date set forth above.
PROST PARTNERS, L.P.
a California Limited Partnership
By: STANISLAUS BREWING CO.,
a California Corporation,
General Partner
By: /s/ /s/
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Garith L. Helm, Garith L. Helm,
its President Individually
By: /s/
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Romy Angle,
its Vice President and Secretary
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