EXHIBIT 10.9
AMENDMENT TO COMMERCIAL LOAN AND SECURITY AGREEMENT
THIS IS AN AMENDMENT TO COMMERCIAL LOAN AND SECURITY AGREEMENT made
this 1st day of October, 2001, by and among:
NATIONAL RECOVERY LIMITED PARTNERSHIP, a limited partnership having
its place of business at 00 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
(hereinafter referred to as the "Lender"), TANGIBLE COLLECTIBLES, INC., a
Delaware corporation with a place of business at 0000 Xxx Xxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as the "Borrower") and TANGIBLE ASSET
GALLERIES, INC. a Nevada corporation with a place of business at 0000 Xxx Xxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as the "Corporate
Guarantor"), and XXXXXXX XXXXXXXX AND XXX XXXXXXXX, whose address is 0000 Xxx
Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (herein after referred to as "Individual
Guarantors") (hereinafter sometimes referred to collectively as the
"Guarantors").
THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS:
Section 1. Applicability of Commercial Loan and Security Agreement to $375,000
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Note
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The parties agree that their Commercial Loan and Security Agreement
dated November 10, 2000 shall be fully applicable to, and shall govern in all
respects, their respective rights and obligations with respect to the Commercial
Demand Note for $375,000 of even date herewith ("$375,000 Note"), attached
hereto as Exhibit A.
Section 2. Waiver.
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The parties agree that Section 4.2 of the Commercial Loan and Security
Agreement proscribing further borrowing by Borrower during the term thereof
shall be waived with respect to this transaction only.
Section 3. Fee to Lender.
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In addition to interest, fees and other charges provided for in the
$375,000 Note, Borrower shall pay Lender a fee of three (3.0) percent of the
Loan Amount thereunder upon funding of the Loan.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement on
the day first above mentioned.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
BORROWER:
Tangible Collectibles, Inc.
BY: /S/ Xxxxxxx XxXxxxxx
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Xxxxxxx XxXxxxxx
Its Chairman, Duly Authorized
BY: /S/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its President, Duly Authorized
GUARANTORS:
Tangible Asset Galleries, Inc.
BY: /S/ Xxxxxxx XxXxxxxx
---------------------------------
Xxxxxxx XxXxxxxx
Its Chairman, Duly Authorized
BY: /S/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
Its President, Duly Authorized
BY: /S/ Xxx XxXxxxxx
---------------------------------
Xxx XxXxxxxx
Individually
Xxxxxxx XxXxxxxx
Individually
LENDER
National Recovery Limited Partnership
BY: /S/
---------------------------------
Xxxx X. Xxxxx
Its: General Partner
SCHEDULE "A"
COMMERCIAL DEMAND NOTE
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$375,000.00 NEWPORT BEACH, CALIFORNIA OCTOBER 1, 2001
FOR VALUE RECEIVED, ON DEMAND, THE UNDERSIGNED, (hereinafter referred
to as "maker") promises to pay to the order of NATIONAL RECOVERY LIMITED
PARTNERSHIP (hereinafter referred to as "Lender"), at its main office at 00
Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or at such other place as the
Lender shall from time to time designate in writing, ON DEMAND the principal sum
of THREE HUNDRED SEVENTY FIVE THOUSAND DOLLARS AND NO CENTS ($375,000.00) with
interest from the date hereof, computed on a 360 day year, on so much of said
principal sum as shall from time to time be outstanding, at the interest rate of
thirteen and ninety nine one hundredths percent (13.99%) per annum together with
all taxes assessed or enforced against said payee or other holder of this Note
upon said sum or this Note, and all its reasonable costs, expenses and
attorney's fees incurred or charged in any action or proceeding for collection
of said debt or in any litigation arising from or concerning said debt or in
foreclosing or otherwise recovering on any mortgage or security interest
securing said debt or in protecting or sustaining the lien and/or priority of
any such mortgage or security interest. Said interest shall be payable at the
aforesaid rate, or at the rate in effect as hereinafter provided, whether before
or after maturity, by acceleration or otherwise, or whether or not judgment has
been obtained, and after judgment, on the full amount of said judgment, at the
greater of the legal rate or the rate then in effect hereunder.
From the date hereof interest on the daily outstanding principal
balance for the actual number of days elapsed in each payment period shall be
due and payable in monthly payments in arrears commencing November 1, 2001 and
continuing on the 1st day of each month thereafter until the entire outstanding
principal balance and accrued and unpaid interest thereon has been paid in full.
All principal and interest evidenced by this Note, if not sooner paid, or
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demanded, shall be due and payable on January 1, 2002 without the necessity of
demand or notice. All payments of principal or interest shall be considered
received by Lender upon receipt of good funds as defined by Lender's financial
depository.
This Note is subject in all respects to the terms and conditions of a
certain Loan and Security Agreement of November even date by and among, inter
alia, Maker and Lender (the "Loan Agreement"), including without limitation
Events of Default as defined therein.
It is agreed that time is of the essence of this Note, and that in the
event of default in the payment of any such installment of principal and/or
interest for a period of five (5) days after the same is due and payable or upon
default under any of the terms, conditions and/or provisions contained in this
note or upon the occurrence of an Event of Default under the Loan Agreement,
then, and in any of said events, the unpaid remaining principal balance of this
indebtedness together with all accrued and unpaid interest thereon and all other
amounts due hereunder shall immediately become due and payable, at the option of
Lender without the necessity for demand or notice; and any failure to exercise
said option shall not constitute a waiver of the right to exercise the same at
any other time. If any such default shall occur, then, interest shall accrue, on
and after the first day of said default, for the period for which any such
payment was due, and during such period of five (5) days or other expired
applicable cure period, and at all times while such default continues, on all
principal and due and unpaid interest, at a rate three (3%) percent per annum
higher than the rate above stated and said interest shall be due and payable on
the first day of each month while any such default exists.
Maker shall pay a late charge equal to five (5%) percent of any
installment not paid within five (5) days of the due date thereof.
Maker reserves the right to prepay this note in full or in part at any
time without any prepayment penalty.
Any deposits, securities or other property of the Maker, (exclusive of
deposits, securities or other property held by the undersigned in a fiduciary
capacity for the benefit of others) which are at anytime within Lender's
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possession or control may be held and treated as collateral security for the
payment of this note, and Lender shall have a lien thereon and right to setoff
the same against any sums due hereunder.
Notwithstanding any provisions of this Note, in the event that the
rate of interest charged hereunder shall at any time exceed the maximum rate
allowed by law, the interest rate payable hereunder shall be deemed to be the
maximum rate allowed by law and any payments in excess of the maximum rate
allowed by law shall be deemed principal payments and applied against the
principal balance hereof.
The Maker hereby agrees that the loan evidenced by the within note is
a "commercial transaction" as defined by the Connecticut General Statutes as
amended.
Upon failure to pay the indebtedness secured hereby in full at
maturity, whether stated or by acceleration, Holder is authorized and empowered
to sell the whole or any part of the Collateral then held by it in such manner
as Holder sees fit and is consistent with applicable law. Sale of part of the
Collateral shall not exhaust Holder's power of sale, but sales may be made from
time to time until all the Collateral is sold, or until the debts hereby secured
are paid in full. Holder shall receive the proceeds of such sale or sales and
shall apply those proceeds in the order stipulated in the relevant provisions of
the Connecticut Uniform Commercial Code. If this Note is placed in the hands of
an attorney for collection or is collected in whole or in part through any
judicial or arbitrial proceedings, Obligor agrees to pay Holder's attorney's
fees and costs.
THE MAKER AND EVERY ENDORSER HEREBY WAIVES ALL RIGHTS TO NOTICE AND
PRIOR COURT HEARING OR COURT ORDER IN CONNECTION WITH ANY AND ALL PREJUDGMENT
REMEDIES THE HOLDER HEREOF MAY BECOME ENTITLED TO BY VIRTUE OF ANY DEFAULTS OR
PROVISIONS OF THE NOTE SECURING THE SAME.
THE MAKER AND EVERY ENDORSER WAIVES A TRIAL BY JURY IN ANY ACTION WITH
RESPECT TO THIS NOTE AND AS TO ANY ISSUE ARISING RELATING TO THIS NOTE OR TO THE
INSTRUMENTS SECURING THIS NOTE.
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TO INDUCE LENDER TO ENTER INTO THE COMMERCIAL LOAN TRANSACTION
EVIDENCED BY THIS NOTE AND SECURITY AGREEMENT, MAKER AGREES THAT THE SAID
TRANSACTION IS COMMERCIAL AND NOT A CONSUMER TRANSACTION AND WAIVES ANY RIGHT OF
MAKER TO NOTICE AND HEARING, JURY TRIAL AND THE POSTING OF BOND BY LENDER UNDER
CHAPTER 903(A) OF THE CONNECTICUT GENERAL STATUTES, REVISION OF 1958 AS AMENDED,
OR OTHER STATUTE OR STATUTES AFFECTING PREJUDGMENT REMEDIES AND AUTHORIZED
LENDER'S ATTORNEY TO ISSUE A WRIT FOR PREJUDGMENT REMEDIES AND AUTHORIZED
LENDER'S ATTORNEY TO ISSUE A WRIT FOR PREJUDGMENT REMEDY WITHOUT A COURT ORDER
PROVIDED THE COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER.
Presentment, protest and notice are hereby waived.
TANGIBLE COLLECTIBLES, INC.
By: _____________________________
Xxxxxxx XxXxxxxx
Its Chairman, Duly Authorized
By: _____________________________
Xxxxxxx X. Xxxxxx
Its President, Duly Authorized
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