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EXHIBIT 10.89
SECOND AMENDMENT TO GENERAL LOAN AND SECURITY AGREEMENT
THIS Second Amendment to General Loan and Security Agreement (the
"Amendment"), made as of 30th day of November, 1995, by and between STEAMBOAT
SUITES, INC., a Colorado Corporation, having an address of 0000 Xxxx Xxxxx
Xxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Debtor");
and
TEXTRON FINANCIAL CORPORATION, a Delaware Corporation, having an
address of 00 Xxxxxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxx Xxxxxx
00000-0000 (hereinafter referred to as "Lender")
RECITALS
This Amendment modifies and amends that certain General Loan and
Security Agreement dated as of October 5, 1994 as modified by First Amendment
to General Loan and Security Agreement dated as of February 27, 1995
(collectively the "Existing GLSA", the Existing GLSA, as amended hereby and as
further amended from time to time is referred to herein as the "Agreement")
Debtor has requested that Lender modify certain terms of the Loan upon
the terms and provisions hereinafter set forth in order to increase the maximum
Receivables Borrowing Base and certain eligibility requirements for Eligible
Notes Receivable.
NOW THEREFORE, in consideration of the foregoing recitals, and in
further consideration of the mutual covenants contained herein, and intending
to be legally bound hereby, the parties hereto mutually agree as follows:
I. INTERPRETATION OF AMENDMENT
A. Terms Defined
Capitalized terms used in this Amendment and not defined herein shall
have the respective meanings specified in the Existing GLSA, as amended hereby.
As used in this Amendment, the following terms have the respective meanings
specified below:
Agreement - as defined in the Recitals hereto.
Amendment or this Amendment - as defined in the Recitals hereto.
B. Directly or Indirectly
Where any provision in the Amendment refers to an action taken by any
Person or which such Person is prohibited from taking, such provisions shall be
applicable whether such action is taken directly or indirectly by such Person.
C. Headings
Section headings have been inserted in this Amendment as a matter of
convenience of reference only; such section headings are not part of this
Amendment and shall not be used in the interpretation of this Amendment.
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II. AMENDMENTS
A. Definitions.
1. The definitions set forth below are hereby added to
Section 1.1 of the Existing GLSA so as to preserve the alphabetical ordering of
the definitions set forth therein:
"Second GLSA Amendment Effective Date - means November 30,
1995."
"Second GLSA Amendment means that certain amendment of this
Agreement to provide for the revised "receivable facility" as
contemplated therein."
2. The parties hereto mutually agree that the definition
of "ELIGIBLE NOTE RECEIVABLE" under Section 1.1 of the Agreement shall be
modified to delete Subsection (c) in its entirety, and in lieu thereof the
following provision is inserted:
"(c) the unpaid balance of such Pledged Note Receivable
shall be due and payable not later than 84 months from the date
thereof, provided that, if any Pledged Note Receivable has a remaining
term of more than 84 months but less than or equal to 120 months and
would otherwise qualify as an Eligible Note Receivable, such Pledged
Note Receivable shall be deemed to be an Eligible Note Receivable for
so long as the aggregate outstanding principal balances of all
Eligible Notes Receivable having remaining terms of more than 84
months but less than or equal to 120 months (determined immediately
after giving effect to such Pledged Note Receivable having become an
Eligible Note Receivable) shall not exceed 50% of the aggregate
principal balance of all Eligible Notes Receivable outstanding at the
time of such determination; to the extent that, at any time, the
aforesaid 50% test shall be violated, a quantity of Pledged Notes
Receivable then having terms of more than 84 months but less than or
equal to 120 months and then being treated as Eligible Notes
Receivable shall be treated as no longer being Eligible Notes
Receivable to the extent necessary to cause the aforesaid 50% test to
then be satisfied;"
3. The parties hereto mutually agree that definition of
"Receivable Borrowing Base" is hereby deleted in its entirety, and in lieu
thereof, the following provision is inserted:
"RECEIVABLES BORROWING BASE - means, at any time, the lesser of
(a) $15,000,000 minus (i) the principal amount of the
Inventory Loan outstanding at such time, minus (ii) the principal
amount outstanding at such time of the $7,500,000 loan facility
extended to Preferred Equities by Dorfinco, and
(b) the sum, without duplication, of (i) 70% of the
aggregate of the unpaid principal balances of all Eligible Notes
Receivable outstanding at such time plus (ii) 80% of the aggregate of
the unpaid principal balances of all Eligible Notes Receivable in
respect of which at least one scheduled monthly installment payment
shall have been made."
4. The parties hereto mutually agree that the definition of
"Receivables Note" is hereby deleted in its entirety, and in lieu thereof the
following provision is inserted:
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"RECEIVABLES NOTE - means that certain promissory note effective as of
October 6, 1994, amended and restated substantially in the form of
Exhibit B-1 to this Agreement and the Second GLSA Amendment.
Receivable Advances up to $7,500,000 were not made in respect of such
promissory note until the First GLSA Amendment became effective and
Receivable Advances with respect to the Receivables Borrowing Base, as
amended by this Amendment shall be made in respect of such amended and
restated promissory note upon the Second GLSA Amendment Effective
Date."
III. REAFFIRMATIONS
1. Nothing contained herein shall be construed in any manner so
as to affect the validity or prior time lien of any security interest held by
Lender, its successors and assigns, in any Collateral described in the
Agreement except that the Inventory Deed of Trust shall be limited to a
security interest of up to $7,500,000 for the Inventory Note and Receivables
Note. Debtor acknowledges and agrees that the Notes, Agreement, Inventory Deed
of Trust, Assignment of Pledged Notes Receivables, Pledged Note Receivables
Deeds of Trust and Pledged Contracts, Guaranty Agreement, Subordination
Agreements, Agency Agreement and all other Security Documents (as modified
herein) shall remain in full force and effect, unimpaired by this Amendment and
that they are valid, binding and enforceable documents, duly executed and
delivered by Debtor, and that Debtor has no offsets or defenses to the
enforcement of the terms and provisions contained therein.
2. Except as provided in Schedule 1 hereto, Debtor, and as
applicable, the Guarantors, hereby reaffirm, restate and incorporate by this
reference all of their respective representations, warranties and covenants as
updated hereunder made in the Agreement (including, as amended hereby), as if
the same were made as of this date and with reference to the Agreement as
amended hereby. In addition, Debtor (and, as applicable, the Guarantors)
represents and warrants as follows:
a. This Amendment (and the Receivables Note as amended and
restated) has been duly authorized by Debtor and is the legal, valid and
binding obligation of Debtor, enforceable against it in accordance with its
terms subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws affecting creditor's rights
and remedies generally and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and, as applicable with respect to the Guarantors, this Amendment is the legal,
valid and binding obligation of the Guarantors, enforceable against them in
accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws affecting
creditor's rights and remedies generally and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
b. The execution, delivery and performance of this Amendment
and the documents, instruments and materials to be delivered in connection
herewith and the transactions contemplated hereby do not and will not result in
any breach of, or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon the Collateral, any provision of law, or any
indenture, agreement or instrument to which Debtor or any Guarantor is a party
or by which the Debtor or Guarantors may be bound or affected except for liens
in favor of Lender and the Pledged Notes Receivable Deeds of Trust.
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c. There are no Defaults or Events of Default pursuant to the
Security Documents; Lender has fully performed its obligations under the
Security Documents which Lender is required to perform as of the date hereof,
and neither Debtor nor the Guarantors have any defense, set-offs, claims,
counterclaims or recoupments against Lender or with respect to the Loan.
3. Debtor and the Guarantor hereby reaffirm their respective
obligations, agreements and undertakings as set forth in the Security
Documents, and acknowledge that the Obligations, or with respect to the
Guarantors, the guaranteed Indebtedness defined in the Guaranty and as amended
herein, are the valid, legally binding and enforceable obligations of Debtor,
and the Guarantors, respectively.
IV. CLOSING CONDITIONS AND ADDITIONAL TERMS
1. The obligation of Lender to enter into this Amendment and, in
addition to all of the other conditions precedent set forth in the Agreement or
the other Loan Documents, to fund any further Advance pursuant to the terms
hereof, shall be subject to the satisfaction of each of the following
conditions precedent by no later than February 29, 1996.
a. Debtor shall pay Lender Two Thousand Five Hundred
Dollars ($2,500) as payment in full for attorney's fees and costs incurred by
Lender in connection with the preparation of this Amendment and related
documentation.
b. Lender shall have received from Debtor the original
executed Receivables Note as amended and restated, and a fully executed
original or executed counterpart originals of this Amendment. Upon receipt of
such Receivables Note, as amended and restated, the Receivables Note dated
October 6, 1994 shall be marked superceded and returned to Debtor.
c. Lender shall have received from Xxxx Xxxxxxxx, Esq.,
counsel for the Debtor and counsel for Guarantors, or other counsel reasonably
acceptable to Lender, closing opinions in form and substance reasonably
acceptable to Lender, dated as of the Amendment closing date.
d. Except for information contained in certificates
provided pursuant to Article IV(1)(g) and (h) hereof or any schedule to this
Amendment, the representations and warranties contained in the Agreement and in
this Amendment, and in the certifications and closing documents delivered in
connection herewith, shall be true and correct in all material respects, and
all covenants and agreements to have been complied with and performed by Debtor
(or Guarantor), shall have been fully complied with and performed to the
satisfaction of Lender.
e. Neither Debtor nor Guarantors shall have taken any
action or permitted any condition to exist which would have been prohibited by
any provision of the Security Documents.
f. No Default or Event of Default shall exist
immediately prior to the closing hereof, or after giving effect to such
closing, or immediately after the making of any Advance requested in connection
with such closing.
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g. Lender shall have received a certificate or
certificates in form and substance satisfactory to it, dated as of the
Amendment closing date and signed by the president or other authorized officer
of the Debtor, certifying that the conditions specified in this Amendment have
been fulfilled, and "bringing down" the representations and warranties
contained in the Agreement.
h. Debtor shall deliver to Lender, and Lender shall have
approved, by no later than the Amendment closing date:
i. A certificate of current good standing for
Debtor, together with copies of any amendments to the certificate of
incorporation or bylaws of Debtor since February 27, 1995, certified
to be true, correct and complete by the Debtor, its secretary or
assistant secretary, or the Colorado Secretary of State;
ii. Evidence satisfactory to Lender that all taxes
and assessments, including without limitation, those specified in
Section 7.1 (a) of the Agreement, owed by or for which Debtor is
responsible for collection have been paid or will be paid prior to
delinquency;
iii. A certificate of the secretary or assistant
secretary of Debtor certifying the adoption by the Board of Directors
thereof of a resolution authorizing specified officers of Debtor to
enter into and execute this Amendment, the Receivables Note and all
other documents, certificates and instruments to be executed and
delivered in connection with the Amendment closing, and to consummate
the transactions contemplated hereunder;
iv. A certificate of the secretary or assistant
secretary of Debtor certifying the incumbency of, and verifying the
authenticity of the signatures of, the officers of Debtor authorized
to sign this Amendment, the Receivables Note and the other documents,
instruments and materials to be executed and delivered in connection
herewith;
v. A certificate of the secretary or assistant
secretary of each Guarantor certifying the adoption by the Board of
Directors thereof of a resolution authorizing specified officers of
the Guarantor to enter into and execute this Amendment and all other
documents, certificates and instruments to be executed and delivered
in connection with the Amendment closing, and to consummate the
transactions contemplated hereunder; and
vi. A certificate of the secretary or assistant
secretary of each Guarantor certifying the incumbency of, and
verifying the authenticity of signatures of, the officers of each
Guarantor authorized to sign this Amendment and the other documents,
instruments and materials to be executed and delivered in connection
herewith;
i. All actions taken in connection with the execution or
delivery of this Amendment, and all documents, certificates, instruments and
materials relating hereto, shall be reasonably satisfactory to Lender and its
counsel. Lender and its counsel shall have received
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copies of such documents and papers as Lender or such counsel may reasonably
request in connection herewith all in form and substance satisfactory to Lender
and its counsel.
j. Debtor shall have paid all fees and expenses required to
be paid prior to or at the closing pursuant to this Amendment.
V. GUARANTORS' OBLIGATIONS
1. Each Guarantor:
a. has reviewed this Amendment with counsel of it's choice,
and accepts and consents to the terms of this Amendment and the transactions
provided for herein;
b. acknowledges and agrees that it receives material benefit
and valuable consideration as a result of the transactions provided for herein
or contemplated hereunder;
c. ratifies and reaffirms the terms of its Guaranty
Agreement, and all of the terms provisions, agreements, conditions and
undertakings contained in the Guaranty Agreement or any of the Security
Documents (as applicable to the Guarantor), all of which remain unmodified,
except as modified herein and in full force and effect;
d. acknowledges and confirms (i) its continuing obligations
under the Guaranty Agreement and agrees to be bound by the terms thereof, and
(ii) that it has been since October 5, 1994 and remains liable with respect to
the guaranteed Indebtedness as defined and provided in its Guaranty Agreement;
e. acknowledges and agrees that the guaranteed Indebtedness
encompasses and apply to all Advances, including Advances from and after the
Amendment closing date, and to all Indebtedness, including Indebtedness arising
pursuant to this Amendment;
f. is fully aware of the financial and other conditions of
the Debtor and is executing and delivering this Amendment based solely upon its
own independent investigation and not upon any representation or statement of
Lender;
g. except for information contained in certificates provided
pursuant to V(1)(i) hereof reaffirms, restates and incorporates by this
reference all of the representations, warranties and covenants made in its
Guaranty Agreement as if the same were made as of this date;
h. acknowledges that its agreements, consents and
acknowledgments contained herein, and the provisions of its Guaranty Agreement
(which are reaffirmed by Guarantor), are a material inducement to Lender to
enter into this Amendment, and that, but for the Guaranty Agreement, and the
Guarantor's agreements as set forth herein, Lender would decline to enter into
this Amendment; and
i. shall deliver to Lender a certificate or certificates in
form and substance satisfactory to it, dated as of the Amendment closing date
and signed by the president or other authorized officer of the Guarantor,
certifying that the conditions specified in this Amendment
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have been fulfilled, and "bringing down" the representations and warranties
contained in the Guaranty Agreement.
VI. MISCELLANEOUS
a. This Amendment is entered into for the benefit of the
parties hereto, and is binding on the respective heirs, successors or assigns;
provided that Debtor may not transfer or assign any of its rights or
obligations under this Amendment without the prior written consent of Lender.
Guarantors are a party to this Amendment solely for the purposes of affirming
their respective obligations in accordance with Article V hereof.
b. This Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Amendment shall become effective upon
Lender's receipt of one or more counterparts hereof timely executed by Debtor
and the Guarantors. This Amendment may not be amended or modified, and no term
or provision hereof may be waived, except by written instrument signed by all
of the parties hereto.
c. Section headings have been inserted in this Amendment as a
matter of convenience of reference only; such headings are not part of this
Amendment and shall not be used in the interpretation of this Amendment.
d. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH OF DEBTOR, THE GUARANTORS AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY
ANY RIGHT, POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS
AMENDMENT, THE OTHER SECURITY DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREIN OR THEREIN, WHETHER SOUNDING IN TORT OR CONTRACT OF OTHERWISE, OR WITH
RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY; AND EACH AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF
DEBTOR, THE GUARANTORS AND LENDER FURTHER WAIVES ANY RIGHT TO SEEK TO
CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY
OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED UNLESS
SUCH FAILURE TO CONSOLIDATE WOULD RESULT IN INABILITY TO ENFORCE A CLAIM.
FURTHER, DEBTOR AND THE GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OR
AGENT OF LENDER, NOR LENDER'S COUNSEL, HAS REPRESENTED EXPRESSLY OR OTHERWISE,
THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION. DEBTOR AND THE GUARANTORS ACKNOWLEDGE
THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO LENDER'S
ACCEPTANCE OF THIS AMENDMENT AND THE OTHER SECURITY DOCUMENTS.
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e. This Amendment and all other Security Documents shall
be governed by the laws of the State of Colorado in all respects, including
matters of construction, performance and enforcement.
f. Whenever possible, the terms of this Amendment and
the terms of the Agreement and all prior amendments shall be read together, but
to the extent of any irreconcilable conflict, the terms of this Amendment shall
govern.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have set their hands and seals the day and year first above
written.
ATTEST: DEBTOR:
STEAMBOAT SUITES, INC.
_____________________________ By:_________________________________
LENDER:
TEXTRON FINANCIAL
CORPORATION
By:
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on behalf of Lender
ACKNOWLEDGED AND AGREED:
GUARANTOR:
PREFERRED EQUITIES
CORPORATION
_____________________________ By:_________________________________
GUARANTOR:
MEGO FINANCIAL CORP.
_____________________________ By:_________________________________
The address of the within named Lender is:
00 Xxxxxxxxxxx Xxxxxx
P.O. Box 6687
Providence, Rhode Island 02940-6687
MHC0801
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CORPORATE ACKNOWLEDGMENT
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STATE OF ____________:
COUNTY OF __________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public
in and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of STEAMBOAT SUITES, INC., being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_____________________________
Notary Public
My commission expires:
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF ____________:
COUNTY OF __________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public
in and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of PREFERRED EQUITIES CORPORATION, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_____________________________
Notary Public
My commission expires:
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CORPORATE ACKNOWLEDGMENT
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STATE OF ____________:
COUNTY OF __________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public
in and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of MEGO FINANCIAL CORPORATION, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
______________________________
Notary Public
My commission expires:
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF ____________:
COUNTY OF __________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public
in and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of TEXTRON FINANCIAL CORPORATION, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
______________________________
Notary Public
My commission expires:
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EXHIBIT B-1
RESTATED AND AMENDED RECEIVABLES PROMISSORY NOTE
$15,000,000
November 30, 1995 Effective as of October 6, 1994
Steamboat Springs, Colorado
FOR VALUE RECEIVED and pursuant to the terms of this Restated and
Amended Receivables Promissory Note (this "NOTE"), the undersigned, STEAMBOAT
SUITES, INC., a Colorado corporation (the "DEBTOR"), promises to pay to the
order of TEXTRON FINANCIAL CORPORATION, a Delaware corporation (the "LENDER")
(the Lender and all subsequent holders of this Note being hereinafter referred
to as the "HOLDER"), at 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000,
Attention: Processing Center Manager, or at such other place as the Holder
hereof may designate in writing, the principal sum of up to FIFTEEN MILLION
DOLLARS ($15,000,000), or so much thereof as shall be outstanding hereunder
from time to time as a result of advances or principal by the Lender to the
Debtor pursuant to that certain General Loan and Security Agreement between the
Debtor and the Lender, dated as of October 5, 1994(as amended by First
Amendment to General Loan and Security Agreement dates as of February 27, 1995
("FIRST AMENDMENT") and Second Amendment to General Loan and Security Agreement
dated as of November 30, 1995 ("SECOND AMENDMENT") and as further amended from
time to time, (collectively the "AGREEMENT"), in respect of Receivables
Advances (as such term is defined in the Agreement), together with interest on
the unpaid principal amount from time to time outstanding under this Note at
the rate or rates of interest provided therefor in the Agreement.
The aforesaid principal amount and interest thereon shall be due and
payable on the dates and in the manner as provided in the Agreement in respect
of the Receivables Loan (as such term is defined in the Agreement). All
principal, interest and any other amounts due under this Note shall be payable
in lawful money of United States of America at the place or places above
stated.
The Debtor may prepay the principal sum outstanding from time to time
hereunder as provided in the Agreement.
To the extent provided in the Agreement, this Note is secured by a
security interest in the Collateral (as such term is defined in the Agreement)
which shall include, without limitation, the Inventory Deed of Trust (as such
term is defined in the Agreement), and is jointly and severally guaranteed by
the Guarantor (as such term is defined in the Agreement).
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This Note is the restated and amended Receivables Note described in
the Second Amendment and has been issued pursuant to the Agreement. This Note
is executed and delivered as of November 30, 1995 but is effective as of
October 6, 1994 and shall amend, restate and renew (without constituting a
revocation, cancellation or extinguishment of) the Note executed by Debtor on
the Closing Date (as defined in the Agreement). All of the terms, covenants
and conditions of the Agreement (including all Exhibits and Schedules thereto)
and all other instruments evidencing or securing the indebtedness hereunder are
hereby made a part of this Note and are deemed incorporated herein in full.
In the event of an Event of Default (as such term is defined in the
Agreement), the Holder may, at its option and in accordance with the terms of
the Agreement and the other Security Document (as defined in the Agreement), in
addition to any other remedies to which it may be entitled, declare the total
unpaid principal balance of the indebtedness evidenced hereby, together with
all accrued but unpaid interest thereon, and all other sums owing hereunder,
under the Agreement or under any other Security Document, immediately due and
payable.
The Debtor and the Holder intend to comply at all times with
applicable usury laws. All agreements between the Debtor and the Holder,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of this Note or otherwise, shall the interest
contracted for charged, received, paid or agreed to be paid to the Holder
hereunder exceed the maximum allowable rate permissible under applicable law,
or in the asbence of a maximum allowable rate under applicable law, then, 45%
per annum (the "Maximum Rate"). The Holder may, in determining the Maximum
Rate in effect from time to time, take advantage of any law, rule or regulation
in effect from time to time available to the Holder which exempts the Holder
from any limit upon the rate of interest it may charge or grants to the Holder
the right to charge a higher rate of interest than that otherwise permitted by
applicable law. If, from any circumstance whatsoever, interest would otherwise
be payable to the Holder in excess of the Maximum Rate, the interest payable to
the Holder shall be reduced to the Maximum Rate; and if from any circumstances
Holder shall ever receive anything of value deemed interest by applicable law
in excess of the Maximum Rate, an amount equal to any excessive interest shall
be applied to the reduction of the principal of the Receivables Loan and not to
the payment of interest, or if such excessive interest exceeds the unpaid
balance of principal of the Receivables Loan, such excess shall be refunded to
the Debtor. All interest paid or agreed to be paid to the Holder shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal so
that the interest on the Receivables Loan for such full period shall not exceed
the Maximum Rate. Debtor agrees that in determining whether or not any
interest payment under the Security
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Documents exceeds the Maximum Rate, any non-principal payment (except payments
specifically described in the Security Documents as "interest") including
without limitation, prepayment fees and late charges, shall to the maximum
extent not prohibited by law, be an expense, fee or premium rather than
interest. The Holder hereby expressly disclaims any intent to contract for,
charge or receive interest in an amount which exceeds the Maximum Rate. The
provisions of this Note are hereby modified to the extent necessary to conform
with the limitations and provisions of this paragraph.
Time is of the essence for the performance and observance of each
agreement and obligation of the Debtor under this Note and under the Security
Documents.
This Note also evidences Debtor's obligation to repay with interest
all additional moneys advanced or expended from time to time by the Holder to
or for the account of the Debtor or otherwise to be added to the principal
balance hereof as provided in any of the Security Documents, whether or not the
principal amount hereof shall thereby exceed the principal amount above stated.
The Debtor and all sureties, endorsers, guarantors and all other
parties now or hereafter liable for the payment of this Note, in whole or in
part, hereby severally waive presentment for payment, demand and protest and
notice of protest, acceleration, or dishonor and non-payment of this Note, and
expressly consent to any extension of time of payment hereof or of any
installment hereof, to the release of any party liable for this obligation, to
the release, change or modification of any of the Collateral, and any such
extension, modification or release may be made without notice to any of said
parties and without in any way affecting or discharging this liability.
No single or partial exercise of any power hereunder, under the
Agreement or under any other Security Document shall preclude other or further
exercise thereof or the exercise of any other power. The Holder shall at all
times have the right to proceed against any portions of the Collateral in such
order and in such manner as the Holder may deem appropriate, without waiving
any rights with respect to any other security. No delay or omission on the
part of the Holder in exercising any right or remedy hereunder or the
acceptance of one or more installments from any person after a default
hereunder, under the Agreement or under any other Security Document shall
operate as a waiver of such right or remedy in connection with any future
default.
In the event any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Note, but this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
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The Holder is hereby authorized by the Debtor to record in the manual
or data processing records of the Holder, or on the grid schedule annexed to
this Note, the date and amount of each Receivables Advance extended to the
Debtor by the Lender hereunder and the date and amount of each repayment of
principal and each payment of interest on account of the Receivable Loan. In
the absence of manifest error, such records and schedule shall be conclusive as
to the outstanding principal amount of all Receivables Advances and the payment
of interest accrued hereunder; provided, however, that the failure of the
Holder to make any such record entry with respect to any Receivables Advance or
any payment in respect of the Receivables Loan shall not limit or otherwise
affect the obligations of the Debtor under this Note or the other Security
Documents.
THIS NOTE AND ALL TRANSACTIONS HEREUNDER OR EVIDENCED HEREIN SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF COLORADO.
The Debtor has caused this Note to be signed in its corporate name by
its duly authorized officer on the date first above written.
STEAMBOAT SUITES, INC.
By: ________________________________
Name:
Title:
[CORPORATE SEAL]
MHC0810
