PROMISSORY NOTE
(Receivables Loan)
U.S. $10,000,000 Parsippany, New Jersey
As of November 30, 2001
FOR VALUE RECEIVED, the undersigned REGINA RESORTS, LLC, a Nevada limited
liability company ("Maker"), promises to pay to RESORT CONDOMINIUMS
INTERNATIONAL, LLC, a Delaware limited liability company ("Lender"), or order,
at Parsippany, New Jersey, or at such other place as the holder of this Note
("Holder") may from time to time designate in writing, in lawful money of the
United States of America, the principal sum of TEN MILLION AND NO/100 UNITED
STATES DOLLARS (U.S. $10,000,000), or so much thereof as has been disbursed and
not repaid, together with interest on the unpaid principal balance from time to
time outstanding from the date hereof until paid, as more fully provided for
below.
This Note is executed pursuant to a Loan Agreement dated as of even date
herewith between Maker and Lender (together with any and all extensions,
renewals, modifications and restatements thereof, "Loan Agreement") and
evidences the advances of the Receivables Loan made pursuant thereto. Unless
otherwise defined herein, all capitalized terms used herein shall have the same
meaning as set forth in the Loan Agreement, the specific provisions of which are
incorporated herein by reference as if set forth at length herein.
Interest shall accrue daily on the basis of the actual number of days in
the computation period using a 360-day year. Interest shall accrue initially at
the Basic Interest Rate in effect on the first day of the month of the initial
advance of the Receivables Loan and shall adjust monthly, on the first day of
each month thereafter, to equal the Basic Interest Rate in effect on that date,
all as more fully provided in the Loan Agreement. All principal and interest
payments due and owing under this Note shall, at the time of payment, be
"grossed up" by the amount of any Impositions imposed with respect to this Note
and of principal and interest payments due hereunder (such amount, over and
above the amount calculated at the Basic Interest Rate, the "Grossed-up
Interest"), as more fully provided in paragraph 6.1.7 of the Loan Agreement.
The contracted for rate of interest of the Receivables Loan, without
limitation, may consist of the following: (i) the Basic Interest Rate,
calculated and applied to the principal balance of this Note in accordance with
the provisions of this Note and the Loan Agreement; (ii) the Default Rate,
calculated and applied to the amounts due under this Note in accordance with the
provisions of this Note and Loan Agreement; (iii) the Grossed-Up Interest; and
(iv) all Additional Sums (as hereinafter defined), if any. In accordance with
the Loan Agreement and this Note, Maker agrees to pay an effective contracted
for rate of interest that is the sum of the above referenced elements.
All fees, charges, goods, things in action or any other sums or things of
value (other than amounts described in the immediate previous paragraph), paid
or payable by Maker (collectively, the "Additional Sums"), whether pursuant to
this Note, the Loan Agreement or the other Receivables Loan Documents or any
other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction, is
payable by Maker as, and is deemed to be, additional interest, and for such
purposes only, the agreed upon and "contracted for rate of interest" of this
lending transaction is deemed to be increased by the rate of interest resulting
from the inclusion of the Additional Sums.
Payments of principal and/or interest shall earn interest, commencing five
(5) Business Days after they are due, at the Default Rate computed on the basis
of actual number of days elapsed using a 360-day year. In addition, after the
occurrence of an Event of Default regardless of whether such occurrence results
in an acceleration of the amounts due under this Note, but solely during the
continuance of such Event of Default, interest shall accrue on the then
principal balance of this Note at the Default Rate calculated in the manner set
forth above.
In no event shall the interest payable on this Note and other charges
payable in the nature of interest exceed the maximum contract rate permitted
under the Applicable Usury Law.
Commencing on the last Business Day of the month during which the initial
advance of the Receivables Loan is made and on the last day of each succeeding
month thereafter ("Installment Date") until the Receivables Loan Maturity Date
or the date the Receivables Loan is paid in full, whichever date first occurs,
Maker will pay or cause to be paid to Holder an installment payment of principal
and interest in the amounts required to be paid pursuant to paragraph 2.7 of the
Loan Agreement.
Regardless of whether the proceeds of the Receivables Collateral are
sufficient for that purpose, interest on the principal balance hereof from time
to time outstanding shall be due and payable monthly in arrears on each
Installment Date; and principal payments on the Note in the amounts required to
be paid pursuant hereto or to paragraphs 2.1 and 3.2 of the Loan Agreement shall
be due and payable at the times specified in such paragraphs.
On the Receivables Loan Maturity Date, the entire unpaid principal balance
of this Note, all accrued and unpaid interest, and all other charges owing in
connection with the Receivables Loan shall be due and payable in full.
In the event an Event of Default occurs, Holder may, without notice or
demand, declare immediately due and payable the entire unpaid principal balance
hereof, all accrued and unpaid interest thereon, and all other charges owing in
connection with the Receivables Loan.
Prepayment of this Note is permitted in whole or in part at any time
without premium or penalty.
In the event that Xxxxxx employs the services of an attorney to enforce
this Note, Maker agrees to pay to Holder in addition to any indebtedness due and
unpaid, all costs and expenses of such proceedings, including without
limitation, attorneys' and paralegals' fees and costs and expert witness fees,
all as more fully set forth in the Loan Agreement.
Holder shall not by any act of omission or commission be deemed to waive
any of its rights or remedies hereunder unless such waiver be in writing and
signed by an authorized officer of Holder and then only to the extent
specifically set forth therein; a waiver on one occasion shall not be construed
as continuing or as a bar to or waiver of such right or remedy on any other
occasion. All remedies conferred upon Holder by this Note or any other
instrument or agreement connected herewith or related hereto shall be cumulative
and none is exclusive, and such remedies may be exercised concurrently or
consecutively at Holder's option.
Every person or entity at any time liable for the payment of the
indebtedness evidenced hereby waives: presentment for payment; protest; and
notice of protest, dishonor and/or nonpayment of this Note. Every such person or
entity further consents that Holder may renew or extend the time of payment of
any part or the whole of the indebtedness at any time and from time to time at
the request of any person or entity liable therefor. Any such renewals or
extensions may be made without notice to any person or entity liable for the
payment of the indebtedness evidenced hereby.
This Note is given and accepted as evidence of indebtedness only and not in
payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's obligations and
agreements under this Note.
This Note and all its provisions, conditions, promises and covenants hereof
shall be binding in accordance with the terms hereof upon Maker, its successors
and assigns, provided nothing herein shall be deemed consent to any assignment
restricted or prohibited by the terms of the Loan Agreement. If more than one
person or other entity has executed this Note as Maker, the obligations of such
persons and entities shall be joint and several.
THIS NOTE AND THE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES HERETO
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW JERSEY (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD
CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION) AND TO THE
EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED STATES.
EACH OF MAKER AND HOLDER: (A) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE
PROCESS, JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF NEW JERSEY, XXXXXX
COUNTY, AND TO THE PROCESS, JURISDICTION, AND VENUE OF THE NEWARK DIVISION OF
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, FOR THE
PURPOSES OF SUIT, ACTION OR OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
NOTE OR THE SUBJECT MATTER HEREOF; AND (B) WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, DEFENSE
OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT SUCH
SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.
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HOLDER AND MAKER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS NOTE WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES; AND THEREFORE,
THEY AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED
BY A JUDGE SITTING WITHOUT A JURY, AND KNOWINGLY AND VOLUNTARILY WAIVE TRIAL BY
JURY IN ANY SUCH PROCEEDING.
ALL OF THE PROVISIONS SET FORTH IN THE PREVIOUS THREE (3) PARAGRAPHS ARE A
MATERIAL INDUCEMENT FOR XXXXXX'S MAKING ADVANCES TO MAKER.
(MAKER'S INITIALS RE PREVIOUS
FOUR (4) PARAGRAPHS: _________)
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE FOR PROMISSORY NOTE (RECEIVABLES LOAN)]
REGINA RESORTS, LLC, a Nevada limited
liability company
By: CR Resorts Los Cabos, S. de X.X. de C.V.,
a Mexican limited responsibility
corporation with variable capital
Its: Managing Member
By: /s/ Guestavo Ripol
-------------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxxx
Title: Attorney-in-Fact
"Maker"
Address of Maker:
REGINA RESORTS, LLC
Blvd. Xxxxxx Xxxx Xxxxxxxx No. 3642-7
Col. Jardines del Pedregal
Xxxxxx, Xxxxxxxx Xxxxxxx 00000
Xxxxxx
_____ Check here to confirm that
last paragraph has been initialed.
