EXHIBIT 10.9
TERM LOAN NOTE
$3,500,000 October 29, 2003
FOR VALUE RECEIVED and intending to be legally bound, the
undersigned MONTICELLO RACEWAY MANAGEMENT, INC., a New York corporation
("Borrower"), promises to pay, in lawful money of the United States of America,
to the order of THE BERKSHIRE BANK ("Lender"), at its address at 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, the original principal sum of Three Million Five
Hundred Thousand Dollars ($3,500,000) plus interest in the amounts and on the
dates set forth below. This note (this "Note") evidences Xxxxxxxx's
unconditional obligation to repay that certain loan (the "Loan") established
pursuant to that certain Loan and Security Agreement, dated October 29, 2003, by
and between Borrower and Lender (as it may be supplemented, restated,
superseded, amended or replaced from time to time, the "Loan Agreement"). All
capitalized terms used herein without further definition shall have the
respective meanings ascribed thereto in the Loan Agreement.
Xxxxxxxx agrees to pay interest on the outstanding principal balance
hereunder at the rate and calculated in the manner specified in the Loan
Agreement.
The principal amount of this Note together with interest shall be
paid in twenty-three (23) equal consecutive monthly installments (calculated on
the basis of eighty-four (84) month amortization of principal and interest) in
the amount of $55,868.72 each, commencing on December 1, 2003 and continuing on
the first day of each calendar month thereafter, with a final payment of the
entire outstanding principal balance hereunder and all accrued but unpaid
interest, fees, costs and Expenses due on November 1, 2005. Interest payable for
the period commencing on the date hereof and ending on October 31, 2003 shall be
deducted from the Loan proceeds paid to Borrower on the Closing Date.
This Note may be prepaid only in accordance with the terms and
conditions of the Loan Agreement.
The Loan Agreement provides for the acceleration of the payment of
principal of and interest on the Loan upon the happening of certain Events of
Default. The obligations evidenced by this Note are secured by the Collateral.
Borrower shall be obligated for Expenses incurred by Xxxxxx from time to time in
connection with the Loan to the extent set forth in the Loan Agreement
To the extent permitted by law, Borrower hereby waives protest,
demand, notice of nonpayment and all other notices in connection with the
delivery, acceptance, performance or enforcement of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH NEW
YORK LAW. To the extent permitted by law, the provisions of this Note are to be
deemed severable and the invalidity or unenforceability of any provision shall
not affect or impair the remaining provisions of this Note which shall
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continue in full force and effect. No modification hereof shall be binding or
enforceable against Lender unless approved in writing by Xxxxxx.
BORROWER (AND LENDER BY ITS ACCEPTANCE HEREOF) HEREBY WAIVES ANY AND
ALL RIGHTS IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION,
PROCEEDING, CLAIM OR COUNTERCLAIM ARISING WITH RESPECT TO RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO OR UNDER THE LOAN DOCUMENTS OR WITH RESPECT TO ANY CLAIMS
ARISING OUT OF ANY DISCUSSIONS, NEGOTIATIONS OR COMMUNICATIONS INVOLVING OR
RELATED TO ANY PROPOSED RENEWAL, EXTENSION, AMENDMENT, MODIFICATION,
RESTRUCTURE, FORBEARANCE, WORKOUT, OR ENFORCEMENT OF THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, and intending to be legally bound hereby,
Xxxxxxxx has executed this Note as of the day and year first above written.
MONTICELLO RACEWAY MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President
[SIGNATURE PAGE TO TERM LOAN NOTE]
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