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EXHIBIT 10.86
AMENDMENT NO. 12 TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 12 TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT is entered into as of the 29th day of September, 1995, by
and between FINOVA CAPITAL CORPORATION, a Delaware corporation ("Lender"), and
PREFERRED EQUITIES CORPORATION, a Nevada corporation ("Borrower").
R E C I T A L S
A. Greyhound Real Estate Finance Company, an Arizona
corporation ("GREFCO") and Borrower entered into an Amended and Restated Loan
and Security Agreement dated as of May 10, 1989 (the "Restated Loan Agreement")
that evidences a loan from GREFCO to Borrower (the "Modified Loan") that is
secured by, among other things, Receivables Collateral.
B. The Modified Loan and Restated Loan Agreement was
amended by an Amendment Number One to Amended and Restated Loan and Security
Agreement dated June 14, 1989 (the "First Amendment"), by an Amendment No. 2 to
Amended and Restated Loan and Security Agreement dated April 16, 1990 (the
"Second Amendment"), by an Amendment No. 3 to Amended and Restated Loan and
Security Agreement dated May 31, 1991 (the "Third Amendment"), by an Amendment
No. 4 to Amended and Restated Loan and Security Agreement dated January 13,
1992 (the "Fourth Amendment"), by an Amendment No. 5 to Amended and Restated
Loan and Security Agreement dated February 23, 1993 (the "Fifth Amendment"); by
an Amendment No. 6 to Amended and Restated Loan and Security Agreement dated
June 28, 1993 (the "Sixth Amendment"), by an Amendment No. 7 to Amended and
Restated Loan and Security Agreement dated January 24, 1994 (the "Seventh
Amendment"), by an Amendment No. 8 to Amended and Restated Loan and Security
Agreement dated as of April 15, 1994 (the "Eighth Amendment"), by an Amendment
No. 9 to Amended and Restated Loan and Security Agreement dated as of August
31, 1994 (the "Ninth Amendment"), by an Amendment No. 10 to Amended and
Restated Loan and Security Agreement dated as of January 26, 1995 (the "Tenth
Amendment"), and by an Amendment No. 11 to Amended and Restated Loan and
Security Agreement dated as of September 22, 1995 (the "Eleventh Amendment").
The Restated Loan Agreement, the First Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth
Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth Amendment,
the Tenth Amendment, the Eleventh Amendment and this Twelfth Amendment and all
other documents evidencing or executed in connection with the Loan are referred
to hereinafter as the "Loan Documents." The Restated Loan Agreement, as
amended by the First Amendment, Second Amendment, Third Amendment, Fourth
Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment, Eighth
Amendment, Ninth Amendment, Tenth Amendment and Eleventh
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Amendment, is referred to hereinafter as the "Loan Agreement." The Loan
contemplated by the Loan Agreement, as amended by this Twelfth Amendment, is
referred to hereinafter as the "Loan." All capitalized terms used in this
Twelfth Amendment will have the meanings assigned to such terms in the Loan
Agreement unless those terms are otherwise defined herein.
C. GREFCO was a wholly-owned subsidiary of Greyhound
Financial Corporation ("GFC"). Pursuant to a plan of liquidation, GREFCO was
liquidated into GFC. Further, pursuant to such plan of liquidation, GREFCO
assigned the Note and all of GREFCO's rights under the Loan Agreement and other
Documents to GFC. Effective as of February 1, 1995, GFC changed its name to
FINOVA Capital Corporation.
D. Borrower has requested and Lender has agreed to fund
(pursuant to the terms and conditions of this Twelfth Amendment), as part of
the Loan, an Advance against the Maximum Loan Amount, to refinance a portion of
the loan made by Lender with respect to the Headquarters, as evidenced by the
2.5 MM Note, and for purposes of providing Borrower with additional working
capital.
NOW, THEREFORE, in consideration of these recitals, the
covenants contained in this Twelfth Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which consideration is hereby
acknowledged, Lender and Borrower agree as follows:
1. LOAN AGREEMENT. Provided the conditions precedent
described in Paragraph 5 of this Twelfth Amendment are met to the satisfaction
of Lender, which satisfaction will be evidenced by Lender's execution of this
Twelfth Amendment unless otherwise provided herein, the Loan Agreement is
hereby further modified as follows:
1.1 The Loan Agreement is hereby amended by adding
to Article I the following definitions:
"Headquarters Readvance": shall have the meaning set
forth in Paragraph 2 of this Twelfth Amendment.
"Headquarters Readvance Loan Fee": shall mean the
loan fee payable by Borrower to Lender equal to one percent (1%) of
the amount of the Headquarters Readvance which shall be due and
payable on the date the Headquarters Readvance is funded.
"Twelfth Amendment": shall mean this Amendment No.
12 to Amended and Restated Loan and Security Agreement.
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1.2 The definitions of the following terms in
Article I of the Loan Agreement, including, to the extent applicable, the First
Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth
Amendment, Sixth Amendment, Seventh Amendment, Eighth Amendment, Ninth
Amendment, Tenth Amendment and Eleventh Amendment, are hereby amended and
restated in their entirety to read as follows:
"2.5 MM Note": shall mean the 2.5 MM Note,
as modified and amended pursuant to the Amended and Restated
2.5 MM Note described in Paragraph 3 of the Twelfth Amendment.
"Headquarters Deed of Trust": shall mean the
Headquarters Deed of Trust, as modified and amended pursuant
to that First Modification of Deed of Trust [Headquarters]
dated as of August 31, 1994 and recorded in Book 941021,
Instrument No. 00641, Official Records of ▇▇▇▇▇ County,
Nevada, and by that Second Modification to Deed of Trust
[Headquarters] described in Paragraph 4 of the Twelfth
Amendment.
2. HEADQUARTERS READVANCE. As an Advance against the
Maximum Loan Amount, Lender shall make a loan (the "Headquarters Readvance") to
Borrower in an amount equal to the lesser of (a) $1,000,000, or (b) the
difference between $2,500,000 and the outstanding principal balance of the 2.5
MM Note as of the date of the Twelfth Amendment. The following terms and
conditions shall apply to the Headquarters Readvance:
2.1 At such time as all conditions with respect
to the Headquarters Readvance in this Twelfth Amendment have been satisfied in
Lender's discretion, Lender shall disburse the Headquarters Readvance to
Borrower in a single Advance on a date mutually agreeable to the parties
hereto. Lender shall have no obligation to disburse any portion of the
Headquarters Readvance after September 29, 1995.
2.2 Borrower shall use the proceeds of the
Headquarters Readvance for working capital purposes.
2.3 Borrower shall pay to Lender the Headquarters
Readvance Loan Fee simultaneously with such advance.
2.4 The Headquarters Readvance shall not be
included in the Mortgage Loan Facility or be deemed to be an Advance under the
Mortgage Loan Facility.
3. AMENDED AND RESTATED 2.5 MM NOTE.
3.1 The outstanding principal balance of the 2.5
MM Note as of the date of the Twelfth Amendment, together with the Headquarters
Readvance shall be
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evidenced by an amended and restated promissory note, which shall amend and
modify the 2.5 MM Note (the "Amended and Restated 2.5 MM Note"), and shall be
in the form attached hereto as Exhibit "A", executed and delivered to Lender
simultaneously with the execution of this Twelfth Amendment. Lender and
Borrower hereby agree that, notwithstanding any provision to the contrary in
the Loan Agreement, the terms and conditions of the Amended and Restated 2.5 MM
Note and this Paragraph 3 shall apply with respect to repayment of the Amended
and Restated 2.5 MM Note. To the extent that Borrower's indebtedness to Lender
arising from the Amended and Restated 2.5 MM Note is evidenced by both the Note
(as distinguished from the Amended and Restated 2.5 MM Note) and the Amended
and Restated 2.5 MM Note, receipts by Lender in payment or satisfaction of such
indebtedness shall be credited against sums due under both the Note and the
Amended and Restated 2.5 MM Note and/or any judgment entered thereon. Within
thirty (30) days after the Headquarters Readvance is made, Lender shall return
the original 2.5 MM Note dated as of June 28, 1993 to Borrower, marked
"Superceded by Amended and Restated Promissory Note dated as of September 29,
1995."
3.2 Notwithstanding the provisions of Paragraph
7.3.1 of the Loan Agreement, Borrower shall have no right to prepay the Amended
and Restated 2.5 MM Note, other than as provided in the Amended and Restated
2.5 MM Note.
3.3 Notwithstanding anything herein to the
contrary, if not sooner paid, the entire outstanding balance of the Amended and
Restated 2.5 MM Note, together with all accrued and unpaid interest and all
other sums due and owing therein, shall be due and payable in full on the fifth
(5th) anniversary of the date of the Headquarters Readvance.
4. SECURITY. As provided in Paragraphs 3.1(a) and (b)
of the Loan Agreement, the payment and performance of the Amended and Restated
2.5 MM Note shall continue to be secured by the Security Interests granted to
Lender pursuant to the Loan Agreement, as amended by this Twelfth Amendment.
In addition, the Headquarters Deed of Trust, as modified by the First
Modification of Deed of Trust [Headquarters], shall be further modified and
amended pursuant to a Second Modification of Deed of Trust [Headquarters], in
the form attached hereto as Exhibit "B", which shall cause the Headquarters
Deed of Trust to continue to secure repayment of the 2.5 MM Note, as restated
and amended by the Amended and Restated 2.5 MM Note, and all other obligations
owed to Lender under the Documents.
5. CONDITIONS PRECEDENT. Lender's obligation to make
the Headquarters Readvance is subject to the following conditions precedent,
all of which must be satisfied at or prior to the funding of the Headquarters
Readvance.
(a) Borrower shall have delivered to Lender the
following executed documents, all in form satisfactory to Lender:
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(i) The Amended and Restated 2.5 MM Note,
in the form attached hereto as Exhibit "A";
(ii) An updated Environmental Certificate
with Representations, Covenants and Warranties, with respect
to the Headquarters, in form acceptable to Lender;
(iii) The Second Modification to Deed of
Trust [Headquarters] in the form attached hereto as Exhibit
"B";
(iv) An opinion from Borrower's counsel,
which counsel must be acceptable to Lender, with respect to
such matters as Lender shall require.
(v) This Twelfth Amendment;
(vi) From the Guarantor of the Loan, a
"Consent of Guarantor," in a form acceptable to Lender;
(vii) A corporate resolution of Borrower;
(viii) A corporate resolution of Guarantor;
(ix) Such other documents or instruments
required by Lender to fully perfect the liens and security
interests of Lender described or contemplated herein;
(x) Such other items as Lender may
require.
(b) RESERVED.
(c) Borrower shall have delivered to Lender a
letter from the environmental consultant who performed the Phase I
environmental assessment for Headquarters previously delivered to
Lender indicating that such consultant has reviewed current records of
all applicable federal, state and local environmental regulatory
agencies and that the Headquarters is not included on any such list or
subject to pending investigation by any such agency.
(e) Borrower shall have obtained and delivered to
Lender, at Borrower's expense, a datedown endorsement to the existing
ALTA extended coverage mortgagee's title insurance policy issued in
favor of Lender by Lawyers Title Insurance Company, or a new ALTA
extended coverage mortgagee's title insurance policy issued by a title
insurance company acceptable to Lender, with such
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additional endorsements as Lender may require, insuring that the
Headquarters Deed of Trust continues to be a first and prior lien on
the Headquarters, subject only to such additional title exceptions as
may be approved by Lender.
(e) Unless waived by Lender in writing, Lender
shall have reviewed and approved credit references of Borrower and
Guarantor. The foregoing condition shall be deemed to have been
waived by Lender upon Lender's funding of the Headquarters Readvance.
(f) Unless waived in writing by Lender, Lender
shall have reviewed and approved a current UCC, tax lien, judgment and
litigation search on Borrower and Guarantor. The foregoing condition
shall be deemed to have been waived by Lender upon Lender's funding of
the Headquarters Readvance.
(g) Borrower shall have paid, or shall have
assumed the obligation or otherwise provided for the payment of all
closing costs, title company charges, recording fees and taxes,
appraisal fees and expenses, survey fees, travel expenses,
architect/engineer inspection fees and expenses, fees and expenses of
Lender's counsel, and all other costs and expenses incurred by Lender
in connection with the preparation, closing and disbursement of the
Headquarters Readvance pursuant to this Twelfth Amendment.
(h) Borrower shall have paid the Headquarters
Readvance Loan Fee in the amount required to be paid with respect to
the Headquarters Readvance made by Lender pursuant hereto.
6. COMMISSIONS. Lender shall not be obligated to pay
any loan commission and/or brokerage fee in connection with the Advances of the
Loan made pursuant to this Twelfth Amendment. Borrower shall pay any and all
such commissions and fees, if any, and hereby agrees to indemnify, defend and
hold harmless Lender from any claim for any such commissions or fees. Lender
represents and warrants to Borrower that Lender has no knowledge of broker
involvement in the transactions contemplated by this Twelfth Amendment.
7. INDEBTEDNESS ACKNOWLEDGED. Borrower acknowledges
that the indebtedness evidenced by the Documents is just and owing and agrees
to pay the indebtedness in accordance with the terms of the Documents.
Borrower further acknowledges and represents that no event has occurred and no
condition presently exists that would constitute a default or event of default
by Borrower under the Loan Agreement or any of the other Documents, with or
without notice or lapse of time.
8. VALIDITY OF DOCUMENTS. Borrower hereby ratifies,
reaffirms, acknowledges and agrees that the Loan Agreement and the other
Documents represent valid,
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enforceable and collectable obligations of Borrower, and that Borrower
presently has no existing claims, defenses (personal or otherwise) or rights of
setoff whatsoever with respect to the Obligations of Borrower under the Loan
Agreement or any of the other Documents. Borrower furthermore agrees that it
has no defense, counterclaim, offset, cross-complaint, claim or demand of any
nature whatsoever which can be asserted as a basis to seek affirmative relief
or damages from Lender or GREFCO.
9. REAFFIRMATION OF WARRANTIES. Except to the extent,
if any, that the information in Exhibit 8.3(a) to the Loan Agreement has been
supplemented by Exhibit "C" attached hereto, Borrower hereby reaffirms to
Lender each of the representations, warranties, covenants and agreements of
Borrower as set forth in each of the Documents with the same force and effect
as if each were separately stated herein and made as of the date hereof.
10. RATIFICATION OF TERMS AND CONDITIONS. All terms,
conditions and provisions of the Loan Agreement, including the First Amendment,
Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth
Amendment, Seventh Amendment, Eighth Amendment, Ninth Amendment, Tenth
Amendment and Eleventh Amendment, and of each of the other Documents shall
continue in full force and effect and shall remain unaffected and unchanged
except as specifically amended hereby. In the event of any conflict between
the terms and conditions of this Twelfth Amendment and any of the other
Documents, the provisions of this Twelfth Amendment shall control.
11. OTHER WRITINGS. Lender and Borrower will execute
such other writings as may be necessary to confirm or carry out the intentions
of Lender and Borrower evidenced by this Twelfth Amendment.
12. EFFECTIVENESS OF AMENDMENT. This Twelfth Amendment
shall not be effective until the same is executed and accepted by Lender in the
State of Arizona.
IN WITNESS WHEREOF, this instrument is executed as of the day
and year first above written.
PREFERRED EQUITIES CORPORATION, FINOVA CAPITAL CORPORATION,
a Nevada corporation a Delaware corporation
By: By:
----------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President Title:
---------------------------
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STATE OF ARIZONA )
) ss
COUNTY OF MARICOPA )
BEFORE ME, the undersigned authority, a Notary Public in and
for the County and State aforesaid, on this day personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, known to me to be the Vice President of PREFERRED EQUITIES
CORPORATION, a Nevada corporation, who acknowledged to me that the same was the
free act and deed of such corporation and that he, being authorized by proper
authority to do so, executed the same on behalf of such corporation for the
purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______ day of
______________, 1995.
---------------------------------
Notary Public
My commission expires:
____________________
STATE OF ARIZONA )
) ss
COUNTY OF MARICOPA )
BEFORE ME, the undersigned authority, a Notary Public in and
for the County and State aforesaid, on this day personally appeared
_____________________________________________________________, known to me to
be the _____________________________ of FINOVA CAPITAL CORPORATION, a Delaware
corporation, who acknowledged to me that the same was the free act and deed of
such corporation and that s/he, being authorized by proper authority to do so,
executed the same on behalf of such corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______ day of
______________, 1995.
---------------------------------
Notary Public
My commission expires:
____________________
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[HEADQUARTERS]
AMENDED AND RESTATED PROMISSORY NOTE
U.S. $2,500,000.00 As of September 29, 1995
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Maker"), promises to pay to FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), or order, at such place as the
holder of this Amended and Restated Note ("Holder") may from time to time
designate in writing, in lawful money of the United States of America, the
principal sum of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ DOLLARS (U.S.
$2,500,000), 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.
Interest due under this Amended and Restated Note (the "Note")
shall (a) accrue daily on the basis of the actual number of days in the
computation period and (b) be calculated on the basis of a year consisting of
360 days. Interest shall accrue initially at an annual interest rate ("Initial
Interest Rate") equal to Prime (as hereinafter defined) in effect on the date
of this Note ("Initial Prime") plus 2-1/4% per annum, subject to adjustment on
each Interest Rate Change Date (as hereinafter defined), but in no event to
exceed the maximum contract rate permitted under the Applicable Usury Law (as
hereinafter defined). The interest rate shall change on each Interest Rate
Change Date by adding to or subtracting from the Initial Interest Rate, as the
case may be, the change, if any, between Initial Prime and Prime in effect on
the applicable Interest Rate Change Date. As used in this Note, the following
capitalized terms have the meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly announced,
from time to time, by Citibank, N.A., New York, New York
("Citibank"), as the corporate base rate of interest charged
by Citibank to its most creditworthy commercial borrowers
notwithstanding the fact that some borrowers of Citibank may
borrow from Citibank at rates of less than such announced
Prime rate; and
"Interest Rate Change Date" means (a) the first business day
of Citibank, N.A., in New York, New York, during the calendar
month following the date of this Note and (b) the first
business day of Citibank, N.A., during each successive month
thereafter.
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This Note shall be repaid in immediately available funds in
sixty (60) monthly installments of principal and interest calculated in the
manner set forth below. The first monthly installment shall be due and payable
on November 1, 1995 and subsequent monthly installments shall be due and
payable on the first Business Day of each and every month thereafter. The
first fifty-nine (59) installments shall be in an amount equal to interest (in
arrears) and a monthly principal payment which shall equal the principal
payment obtained when the beginning principal balance of this Note is amortized
over a sixty (60) month principal amortization schedule using the Initial
Interest Rate. Any remaining principal and all other sums due and owing
pursuant hereto plus accrued and unpaid interest shall be due and payable on
October 1, 2000 (the "Maturity Date").
Payments of principal and/or interest shall, at the option of
Holder, earn interest after they are due at a rate ("Overdue Rate") equal to
(a) 2% per annum above the rate otherwise payable hereunder or (b) the maximum
contract rate permitted under the Applicable Usury Law, whichever of (a) or (b)
is lesser. Furthermore, in the event of the occurrence of an Event of Default
(as the term "Event of Default" is defined in the Loan Agreement) the unpaid
principal balance of this Note shall, at the option of Holder, accrue interest
at the Overdue Rate.
This Note is executed pursuant to that certain Amendment No.
12 to Amended and Restated Loan and Security Agreement of even date herewith
between Maker and Lender (such Amended and Restated Loan and Security
Agreement, as amended, the "Loan Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement, the applicable provisions of which are incorporated herein by
reference.
All payments made under this Note shall be applied first
against amounts due hereunder or under the Loan Agreement, other than principal
and interest; second, against interest then due under this Note; and third,
against the principal of this Note.
In the event any installment of principal and/or interest
required to be made in connection with the indebtedness evidenced hereby is not
paid when due and, except in the case of the final installment, for which no
grace period is allowed, such default continues for five days after notice
thereof to Maker or an Event of Default occurs, Holder may, at its option,
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 loan evidenced hereby.
The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the interest
rate, calculated and applied to the principal balance of this Note in
accordance with the provisions of this
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Note; (ii) Overdue Rate, calculated and applied to the amounts due under this
Note in accordance with the provisions hereof; (iii) Headquarters Readvance
Loan Fee; and (iv) all Additional Sums (as hereinafter defined), if any. Maker
agrees to pay an effective contracted for rate of interest which 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 immediately previous
paragraph), paid or payable by Maker (collectively, the "Additional Sums"),
whether pursuant to this Note, the Loan Agreement, the other 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,
shall be payable by Maker as, and shall be deemed to be, additional interest,
and for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by the
rate of interest resulting from the Additional Sums.
This Note is prepayable in whole but not in part at any time
subject to the following conditions:
(a) Not less than thirty (30) days prior to the date
on which Maker desires to make such prepayment, Maker shall deliver to
Holder written notice of Maker's intention to prepay, which notice shall
be irrevocable and shall state the prepayment date; and
(b) Maker pays to Holder, concurrently with such
prepayment (i) a prepayment premium (the "Prepayment Premium") equal
to (A) three percent (3%) of the amount prepaid if such prepayment is
made on or before June 30, 1996, (B) two percent (2%) of the amount
prepaid if such prepayment is made after June 30, 1996 and on or before
June 30, 1997 and (C) one percent (1%) of the amount prepaid if such
prepayment is made after June 30, 1997 and on or before June 30, 1998
and (ii) accrued and unpaid interest through the date of such prepayment
on the principal balance being prepaid (it being agreed and understood
that no Prepayment Premium shall be payable if this Note is prepaid at
any time after June 30, 1998). The foregoing notwithstanding, in the
event a prepayment of this Note occurs as a result of an acceleration
by Holder of the balance due pursuant to its right to declare an
acceleration hereof under the terms of the Loan Agreement, the
Prepayment Premium shall equal five percent (5%) of the principal being
prepaid, notwithstanding the date upon which such acceleration occurs.
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In the event that Holder institutes legal proceedings to
enforce this Note and Holder is the prevailing party in such proceedings, Maker
agrees to pay Holder, in addition to any indebtedness due and unpaid, all costs
and expenses of such proceedings, including, without limitation, attorneys'
fees.
Holder shall not by any act or 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
demand; notice of protest, demand, dishonor and nonpayment of this Note; and
trial by jury in any litigation arising out of, relating to or connected with
this Note or any instrument given as security herefor. 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 other 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 of the 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 has been executed and delivered in Phoenix, Arizona,
and the obligations of Maker hereunder shall be performed in Phoenix, Arizona.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ARIZONA AND,
TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED
STATES. Maker (a) hereby irrevocably submits itself to the process,
jurisdiction and venue of the courts of the State of
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Arizona, Maricopa County, and to the process, jurisdiction and venue of the
United States District Court for Arizona, for the purposes of suit, action or
other proceedings arising out of or relating to this Note or the subject matter
hereof brought by Holder 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 Maker 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.
It is the intent of the parties to comply with the usury law
("Applicable Usury Law") applicable pursuant to the terms of the preceding
paragraph or such other usury law which is applicable if the law chosen by the
parties is not. Accordingly, it is agreed that notwithstanding any provisions
to the contrary in this Note, or in any of the documents securing payment
hereof or otherwise relating hereto, in no event shall this Note or such
documents require the payment or permit the collection of interest in excess of
the maximum contract rate permitted by the Applicable Usury Law. In the event
(a) any such excess of interest otherwise would be contracted for, charged or
received from Maker or otherwise in connection with the loan evidenced hereby,
or (b) the maturity of the indebtedness evidenced by this Note is accelerated
in whole or in part, or (c) all or part of the principal or interest of this
Note shall be prepaid, so that under any of such circumstance the amount of
interest contracted for, shared or received in connection with the loan
evidenced hereby, would exceed the maximum contract rate permitted by the
Applicable Usury Law, then in any such event (1) the provisions of this
paragraph shall govern and control, (2) neither Maker nor any other person or
entity now or hereafter liable for the payment hereof will be obligated to pay
the amount of such interest to the extent that it is in excess of the maximum
contract rate permitted by the Applicable Usury Law, (3) any such excess which
may have been collected shall be either applied as a credit against the then
unpaid principal amount hereof or refunded to Maker, at Holder's option, and
(4) the effective rate of interest will be automatically reduced to the maximum
amount of interest permitted by the Applicable Usury Law. It is further
agreed, without limiting the generality of the foregoing, that to the extent
permitted by the Applicable Usury Law: (x) all calculations of interest which
are made for the purpose of determining whether such rate would exceed the
maximum contract rate permitted by the Applicable Usury Law shall be made by
amortizing, prorating, allocating and spreading during the period of the full
stated term of the loan evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise in connection with such loan;
and (y) in the event that the effective rate of interest on the loan should at
any time exceed the maximum contract rate allowed under the Applicable Usury
Law, such excess interest that would otherwise have been collected had there
been no ceiling imposed by the Applicable Usury Law shall be paid to Holder
from time to time, if and when the effective interest rate on the loan
otherwise falls below the maximum amount permitted by the Applicable Usury Law,
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to the extent that interest paid to the date of calculation does not exceed the
maximum contract rate permitted by the Applicable Usury Law, until the entire
amount of interest which would have otherwise been collected had there been no
ceiling imposed by the Applicable Usury Law has been paid in full. Maker
further agrees that should the maximum contract rate permitted by the
Applicable Usury Law be increased at any time hereafter because of a change in
the law, then to the extent not prohibited by the Applicable Usury Law, such
increases shall apply to all indebtedness evidenced hereby regardless of when
incurred; but, again to the extent not prohibited by the Applicable Usury Law,
should the maximum contract rate permitted by the Applicable Usury Law be
decreased because of a change in the law, such decreases shall not apply to the
indebtedness evidenced hereby regardless of when incurred.
In the event of any conflict or inconsistency between the
provisions of this Note and the provisions of the Loan Agreement, the
provisions of the Loan Agreement shall control.
This Note is an amendment and restatement of that certain
Promissory Note, dated as of June 28, 1993, by Maker to the order of Lender.
This Note shall not constitute a waiver of any existing default or breach of a
covenant and shall have no retroactive effect; provided, however, that any and
all written waivers given heretofore are hereby extended to the date hereof.
PREFERRED EQUITIES
CORPORATION, a Nevada corporation
"Maker"
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
Federal Taxpayer Identification
Number: ▇▇-▇▇▇▇▇▇▇
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
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