Exhibit 10.76
PROMISSORY NOTE
$30,000,000 August 15, 1997
Hartford, Connecticut
FOR VALUE RECEIVED and pursuant to the terms of this Promissory Note (this
"Note"), the undersigned, GRAND SUMMIT RESORT PROPERTIES, INC., a Maine
corporation (the "Borrower"), promises to pay to the order of TEXTRON FINANCIAL
CORPORATION (the "Lender") (the Lender and all subsequent holders of this Note
being hereinafter referred to as the "Holder"), at 000 Xxxx Xxxxx Xxxxx, Xxxx
Xxxxxxxx, Xxxxxxxxxxx or at such other place as the Holder hereof may designate
in writing, the principal sum of up to THIRTY MILLION DOLLARS ($30,000,000), or
so much thereof as shall be outstanding hereunder from time to time as a result
of advances of principal by the Lender to the Borrower pursuant to that certain
Loan and Security Agreement dated as of August 1, 1997 among the Borrower, the
Lender, Green Tree Financial Servicing Corporation and Textron Financial
Corporation, as Administrative Agent (as amended from time to time, the "LSA"),
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 LSA.
The aforesaid principal amount and interest thereon shall be due and
payable on the dates and in the manner as provided in the LSA. All principal,
interest and any other amounts due under this Note shall be payable in lawful
money of the United States of America at the place or places above stated.
Unless and until an assignment agreement effecting the assignment or
transfer of this Note shall have been accepted by the Administrative Agent, as
provided for in Section 2.6(b) of the LSA, the Borrower and the Administrative
Agent shall be entitled to deem and treat the Lender as the owner and holder of
this Note.
The Borrower may only prepay the principal sum outstanding from time to
time hereunder as provided in the LSA.
This Note is secured by a security interest in the Collateral (as such
term is defined in the LSA).
This Note is one of the Borrower's "Notes" in the aggregate principal
amount of $55,000,000 and has been issued pursuant to the LSA, and all of the
terms, covenants and conditions of the LSA (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 LSA),
the unpaid balance of the principal amount of this Note, together with all
accrued and unpaid interest thereon, may become, or may be declared to be, due
and payable in the manner, upon the conditions and with the effect provided in
the LSA.
The Borrower and the Holder intend to comply at all times with applicable
usury laws. All agreements between the Borrower 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
exceed the maximum amount permissible under applicable law (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 a Holder in
excess of the Maximum Rate, the interest payable to the Holder shall be reduced
to the Maximum Rate; and if from any circumstance the 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 outstanding principal hereunder and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of principal
hereof, such excess shall be refunded to the Borrower by the Holder. 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 hereof until payment in full of the principal so that the interest
hereon for such full period shall not exceed the Maximum Rate for the Holder.
The Borrower agrees that in determining whether or not any interest payment
hereunder exceeds the Maximum Rate for the Holder, any non-principal payment
(except payments specifically described in the Security Documents (as defined in
the LSA) as "interest") including without limitation, fees and late charges,
shall to the maximum extent not prohibited by law, be an expense, fee or premium
rather than interest in respect of the Holder. The Holder hereby expressly
disclaims any intent to contract for, charge or receive interest in an amount
which exceeds the Maximum Rate for the Holder.
Time is of the essence for the performance and observance of each
agreement and obligation of the Borrower under this Note, the LSA and under the
Security Documents.
This Note also evidences Borrower'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 Borrower 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 Borrower 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 LSA or
under any other Security Document shall preclude other or further exercise
thereof or the exercise of any other power. 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 LSA or
under any other Security Document shall operate as a
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waiver of such right or remedy or of any other right or remedy under this Note
nor 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.
The Holder is hereby authorized by the Borrower to record in the manual or
data processing records of the Holder, or on the grid schedule annexed to this
Note, the date, type and amount of each Advance extended to the Borrower by the
Holder hereunder and the date, type and amount of each repayment of principal
and each payment of interest on account thereof. In the absence of manifest
error, such records and schedule shall be conclusive as to the outstanding
principal amount of all 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 Advance or any payment in respect thereof shall not limit or
otherwise affect the obligations of the Borrower under this Note or the other
Security Documents.
The Borrower promises to pay all costs and expenses as provided in Section
11.2 of the LSA.
[Remainder of page intentionally left blank. Next page is signature page.]
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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 MAINE.
The Borrower has caused this Note to be signed by a duly authorized
officer on the date first above written.
BORROWER:
GRAND SUMMIT RESORT PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
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SCHEDULE TO PROMISSORY NOTE
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Date Principal Amount Amount of Amount of Unpaid
of Advance Principal Repaid/ Interest Principal
Made/Type of Type of Advance: Paid Balance of:
Advance: Pre-Sale Pre-Sale Advance, Pre-Sale
Advance, Interest Interest Advance, Advances,
Advance, Xxxxxx Xxxxxx Bowl aggregate
Bowl Project Project Advance, amount of
Advance, Killington Killing-ton Project Interest
Project Advance or Advance or Mt. Advances and
Mt. Snow Project Snow Project Jordan Bowl
Advance Advance Project
Advance,
Killington
Project
Advance or Mt.
Snow Project
Advance
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Date Principal Amount Amount of Amount of Unpaid
of Advance Principal Repaid/ Interest Principal
Made/Type of Type of Advance: Paid Balance of:
Advance: Pre-Sale Pre-Sale Advance, Pre-Sale
Advance, Interest Interest Advance, Advances,
Advance, Xxxxxx Xxxxxx Bowl aggregate
Bowl Project Project Advance, amount of
Advance, Killington Killing-ton Project Interest
Project Advance or Advance or Mt. Advances and
Mt. Snow Project Snow Project Jordan Bowl
Advance Advance Project
Advance,
Killington
Project
Advance or Mt.
Snow Project
Advance
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