SECOND AMENDED AND RESTATED SECURED PROMISSORY NOTE

ARTICLE I
DEFINITIONS AND INTERPRETATION

1.1 Certain Terms Defined.  Terms used in this Note shall have the meanings ascribed thereto below.

(a) indebtedness for borrowed money, including non-recourse and subordinated indebtedness;

(b) obligations evidenced by bonds, debentures, notes or other similar instruments;

(c) obligations to pay the deferred purchase price of property or services relative to the purchase of long term assets in accordance with GAAP;

(d) obligations as lessee under leases which have been or should be, in accordance with GAAP, recorded as capital leases;

(e) obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities or property;

(f) obligations of such Person to reimburse any bank or other Person in respect of amounts actually paid under a letter of credit or similar instrument;

(g) indebtedness or obligations of others secured by a lien on any asset of such Person, whether or not such indebtedness or obligations are assumed by such Person (to the extent of the value of the asset);

(h) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a) though (g) above; and

(i) liabilities in respect to unfunded vested benefits under plans covered by Title IV of the Employee Retirement Income Security Act of 1974, as amended.

1.2 Accounting Principles.  Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting

ARTICLE II  

2.1 The Loan.  On the Original Note Closing Date, Lender advanced to Borrower a loan in an original principal amount equal to Five Million and No/100 DOLLARS ($5,000,000.00), of which $2,884,824 remained unpaid and outstanding as of the Amended Note Closing Date.  On the Amended Note Closing Date, Lender advanced to Borrower an additional $1,615,176 loan, resulting in an aggregate principal amount equal to Four Million Five Hundred Thousand and No/100 DOLLARS ($4,500,000.00) owing under the Amended Note, of which $2,415,557.00 remains unpaid and outstanding as of the date hereof.  On the date hereof, Lender advanced to Borrower an additional $2,384,443.00 loan, resulting in an aggregate principal amount equal to Four Million Eight Hundred Thousand and No/100 DOLLARS ($4,800,000.00) (the “Loan”).  The Loan is not a revolving credit facility and therefore, may not be drawn, repaid and redrawn.  Any payments of principal on the Loan shall be applied to permanently reduce the Loan in accordance with this Note and, once repaid, no portion of the Loan may be re-borrowed.  As a condition precedent to Lender making the Loan, on the date hereof, Borrower shall pay to Lender a non-refundable commitment fee equal to $23,844.00, which commitment fee shall be deemed fully earned on the date hereof. Please see Exhibit C attached hereto and made a part hereof for a description of how the increase in the Loan shall be funded to Borrower, less the aforementioned commitment fee and less the $50,000 Receivables Loan diligence fee owing to Lender by Guarantor.   

2.2 Interest Rate; Past Due Charge; Default Rate; Maximum Rate. 

(a) Interest Rate.  The outstanding principal balance under the Loan shall bear interest at the Contract Rate.  Whenever, subsequent to the date hereof, the LIBOR Rate is increased or decreased, the Contract Rate, as set forth herein, shall be similarly changed without notice or demand of any kind by an amount equal to the amount of such change in the LIBOR Rate on the day of such change.  The monthly interest due on the principal balance of the Loan outstanding shall be computed for the actual number of days elapsed during the month in question on the basis of a year consisting of three hundred sixty (360) days and shall be calculated by determining the average daily principal balance outstanding for each day of the month in question.  The daily rate shall be equal to 1/360th times the Contract Rate.  If any statement furnished by Lender for the amount of a monthly payment due exceeded the actual amount that should have been paid because the LIBOR Rate decreased and such decrease was not reflected in the monthly statement, Borrower shall make the payment specified in the monthly statement from Lender and Borrower shall receive a credit for the overpayment, which credit shall be applied towards the next subsequent monthly payment due hereunder.  If any statement furnished by Lender for the amount of a monthly payment due was less than the actual amount that should have been paid because the LIBOR Rate increased and such increase was not reflected in the monthly statement, Borrower shall make the payment specified in the monthly statement from Lender and Borrower shall be required to pay any resulting underpayment with the next subsequent monthly payment due hereunder.

(b) Past Due Charge and Default Rate.  Borrower recognizes and acknowledges that any default on any payment, or portion thereof, due hereunder or to be made under any of the other Loan Documents, will result in losses and additional expenses to Lender in servicing the Obligations, and in losses due to Lender’s loss of the use of funds not timely received.  Borrower further acknowledges and agrees that in the event of any such default, Lender would be entitled to damages for the detriment proximately caused thereby, but that it would be extremely difficult and impracticable to ascertain the extent of or compute such damages.  Therefore, if for any reason Borrower fails to pay any interest or principal or any other sum required to be paid under this Note when due, including any payment due at maturity or upon acceleration, or fails to pay any amounts due under any of the other Loan Documents when due, and such failure continues for a period of five (5) Business Days after the date on which such payment was due, then Borrower shall pay to Lender, in addition to any such delinquent payment (excluding the payment of the Loan due at maturity and the payment of the Loan upon acceleration by Lender), an amount equal to five percent (5%) of such delinquent payment (“Past Due Charge”).  In addition, upon the Maturity Date, upon the occurrence of a Default or an Event of Default and/or upon any acceleration, interest shall automatically accrue hereunder, without notice to Borrower or any other Person, at the Default Rate.  The Default Rate shall be calculated and due from the date that the Default occurred and shall be payable upon demand.

(c) Maximum Rate.  Borrower and Lender intend to comply at all times with applicable usury laws.  All agreements between Borrower and Lender, 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 Lender exceed the maximum amount permissible under Applicable Law (the “Maximum Rate”).  Lender 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 Lender which exempts Lender from any limit upon the rate of interest it may charge or grants to Lender 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 Lender in excess of the Maximum Rate, the interest payable to Lender shall be reduced to the Maximum Rate; and if from any circumstance Lender 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 principal of the Loan and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal of the Loan, such excess shall be refunded to Borrower.  All interest paid or agreed to be paid to Lender shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal so that the interest on the Loan for such full period shall not exceed the Maximum Rate.  Borrower agrees that in determining whether or not any interest payment under the Security Documents or other Loan Documents exceeds the Maximum Rate, any non-principal payment (except payments specifically described in the Security Documents as “interest”) including without limitation, late charges, shall to the maximum extent not prohibited by law, be an expense, fee or premium rather than interest.  Lender hereby expressly disclaims any intent to contract for, charge or receive interest in an amount which exceeds the Maximum Rate.  The provisions of this Note, all other Security Documents and Loan Documents are hereby modified to the extent necessary to conform with the limitations and provisions of this paragraph, and this paragraph shall govern over all other provisions in any document or agreement now or hereafter

2.3 Payment.

(a) Payment on Maturity Date.  The aggregate outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon and all fees, costs, expenses and other amounts with respect thereto, and all other Obligations and amounts outstanding pursuant to the Mortgages and/or any other Loan Documents, shall be due and payable in full, if not earlier in accordance with this Note, on the Maturity Date.

(b) Monthly Payments of Interest.  On each Monthly Payment Date through and including the Maturity Date, Borrower shall pay to Lender interest in arrears for the period including the twentieth day of the prior calendar month through and including the nineteenth day of the then current calendar month.

(c) Voluntary Prepayment.  So long as no Default or Event of Default has occurred and is continuing, Borrower shall have the privilege to prepay the Loan, in whole or in part, at any time;  provided,  that, if Borrower prepays the Loan with funds other than the Release Prices received in connection with the sale of Pledged Intervals in accordance with Section 2.4(a) hereof or from the proceeds of a casualty or condemnation, such prepayment shall be subject to the applicable Prepayment Premium.

(d) Mandatory Prepayment.

(i) Principal Reduction.  On or prior to each date set forth below (each, a “Principal Reduction Date”), Borrower shall make payments of principal to Lender, whether through the payment of Release Prices in connection with sales of Pledged Intervals or otherwise, in an aggregate amount equal to the amount necessary to reduce the outstanding principal balance of the Loan as of such Principal Reduction Date to an amount less than or equal to the outstanding principal balance set forth below corresponding to such Principal Reduction Date without payment of a Prepayment Premium:

(ii) Mandatory Condemnation Payments.  Upon the delivery of any Condemnation Compensation to Borrower, any Owner’s Association and/or any Purchaser, if such Condemnation Compensation is not required to be used to repair, replace or improve the Pledged Intervals or other Collateral or the Resort in accordance with the terms of any

(e) Costs, Fees and Expenses.  Reasonable costs, fees and expenses payable pursuant to this Note and the other Loan Documents, and Protective Advances, shall be due and payable by Borrower to Lender or to such other Person(s) designated by Lender in writing on demand.

(f) Business Days.  Whenever in this Note or any other Loan Document any payment is required to be made on a date that is not a Business Day, such payment shall be made on the first Business Day after such date (and any such extension of time shall be included in the computation of payment of interest (including interest at the Default Rate)).

(g) Payments without Deduction.  All payments under the Loan shall be made free and clear of, and without deduction or withholding for, or on account of, any taxes.

(h) U.S. Funds.  The Loan is denominated and payable solely in United States Dollars.

(i) Indebtedness Absolute; No Offset; Waiver.  The payment obligations of Borrower under the Loan Documents are absolute and unconditional, without any right of rescission, setoff, counterclaim or defense for any reason against Lender.  As of the date hereof, the Loan has not been compromised, adjusted, extended, satisfied, rescinded, set-off or modified, and the Loan Documents are not subject to any litigation, dispute, refund, claims of rescission, setoff, netting, counterclaim or defense whatsoever, including but not limited to, claims by or against Borrower, any Guarantor or any other party.  Payment of the Obligations by Borrower, when due and payable pursuant to the terms of the Loan Documents, is not subject to compromise, adjustment, extension, satisfaction, rescission, set-off, counterclaim, defense, abatement, suspension, deferment, deductible, reduction, termination or modification, whether arising out of transactions concerning the Loan, or otherwise.  Without limitation to the forgoing, to the fullest extent permitted under applicable law and notwithstanding any other term or provision contained in any Loan Document, Borrower hereby waives (i) presentment, protest and demand, notice of default (except as expressly required in the Loan Documents), notice of intent to accelerate, notice of acceleration, notice of protest, notice of demand and of dishonor and non-payment of the Obligations, (ii) any requirement of diligence or promptness on Lender’s part in the enforcement of its rights under the provisions of the Loan Documents, (iii) any rights, legal or equitable, to require any marshalling of assets or to require foreclosure sales in a particular order, (iv) all notices of every kind and description which may be required to be given by any statute or rule of law, (v) the benefit of all laws now existing or that may hereafter be enacted providing for any appraisement before sale of any portion of the Collateral, (vi) all rights of homestead, exemption, redemption, valuation, appraisement, stay of execution, notice of election to mature or declare due the whole of the Obligations in the event of foreclosure of the Liens created by the Loan Documents, (vii) the pleading of any statute of limitations as a defense to any demand under any Loan Document and (viii) any defense to the obligation to make any payments required under the Loan Documents, including the obligation to pay taxes based on

2.4 Sales of Pledged Intervals and Release of Liens.

(a) Sales.

(i) On or before the 20th calendar day of the month subsequent to the month in which a sale of a Pledged Interval occurs, Borrower shall deliver, or cause to be delivered, to Lender the Release Price for such Pledged Interval.  Upon receipt of payment of the Release Price, Lender shall credit the Release Price payment as provided in Section 2.5.  Borrower acknowledges that Lender shall have no obligation to execute or deliver or authorize the recording of any partial release of Lender’s Lien related to a sold Pledged Interval prior to Lender’s receipt of the Release Price for such Pledged Interval in good, collected funds in Dollars.

(ii) Lender shall adjust and re-calculate the Adjusted Release Payment for each Pledged Interval on each Quarterly Determination Date to account for (A) the then current outstanding balance of the Loan and all other Obligations under the Loan Documents and (B) the aggregate Retail Value of all Pledged Intervals (taking into account Recycled Inventory and any Pledged Intervals that have been released) as of such Quarterly Determination Date.

(b) Release of Lien on Timeshare Interests.

(i) Release for Timeshare Interests.  In connection with the sale of a Pledged Interval to a Purchaser pursuant to a Timeshare Agreement, Lender agrees to execute and deliver to Borrower the documents referred to below, pursuant to which the security interest and Lien in and to such Pledged Interval created by this Note, any Mortgage or any other Loan Document will be released if, but only if, all of the following conditions shall have been fully satisfied:

(1) the full Release Price in respect of such Pledged Interval shall have been paid to and received by Lender or Lender’s agent in good, collected funds; and

(2) a partial release of mortgage, in the form attached hereto as Exhibit B, shall have been completed by Borrower and submitted to Lender with the aforesaid request.

(ii) Recording; Certain Costs.  Borrower shall bear the responsibility of recording any and all documents executed and delivered by Lender under Section 2.4(b)(i).  Borrower shall pay all escrow costs and recording and transfer costs in respect of such documents.

2.5 Application of Payments and Proceeds.  Subject to the terms of the Mortgage requiring a different application of payments after the occurrence and during the continuance of an Event of Default, all payments delivered to Lender pursuant to Section 2.3,  Section 2.4 or otherwise pursuant to the Loan Documents, and all proceeds of Collateral received by Lender, in each case, in good, collected funds in Dollars, shall be applied by Lender as follows:

(a) first, to Lender, all fees, costs and expenses due and owing pursuant to this Note and/or any other Loan Document, and any Protective Advances, until paid in full;

(b) second, to Lender, accrued and unpaid interest under this Note and the other Loan Documents, including, without limitation, any interest at the Default Rate in accordance with Section 2.2(b), in each case, until paid in full;

(c) third, to Lender, the principal amount of the Loan, until paid in full;

(d) fourth, to Lender, all other Obligations, until paid in full; and

(e) fifth, to Lender, all Other Indebtedness (including, without limitation, the Receivables Loan Obligations), until paid in full.

3.1 Mortgages; Title Insurance.

(a) Mortgage(s).  On the date hereof and to the extent not previously delivered, Borrower shall execute and deliver the Mortgage to Lender granting to Lender a valid, first priority Lien and security interest in all unsold Timeshare Interests owned as of the date hereof, which Lien and security interest shall be subject to no other Liens except for Permitted Encumbrances.  On or before each February 15th and August 15th hereafter, Borrower shall execute and deliver to Lender an amendment to the Mortgage granting to Lender a valid, first priority Lien and security interest in all unsold Timeshare Interests owned as of the date thereof that are not at such time subject to the Mortgage (including all Recycled Inventory as of such date), which Lien and security interest shall be subject to no other Liens except for Permitted Encumbrances.  The Mortgage and each amendment thereto shall be delivered to a title company acceptable to Lender for recordation in the applicable public real property office, and all taxes, recording fees and other fees and charges required by Applicable Law to be paid in connection therewith shall be duly paid in full in accordance with Lender’s instructions to the title company responsible for such filing.

(b) Title Insurance.  On the date hereof and to the extent not previously delivered, Borrower shall deliver to Lender a mortgagee’s title insurance policy (issued to Lender and in full force and effect) in respect of the Mortgage together with such endorsements thereto as Lender may require.  On each February 15th and August 15th hereafter, Borrower shall deliver to Lender an endorsement to such title insurance policy (issued to Lender and in full force and effect) in respect of each Timeshare Interest being added to the Mortgage in accordance with Section 3.1(a) above.  Such title insurance policy (and subsequent endorsements, as applicable) (i) shall have been issued by Resort Title Agency, Inc., as agent for First American Title Insurance Company, (ii) shall be in form and substance satisfactory to Lender and its special counsel, (iii) shall be in an amount equal to $4,800,000.00,  (iv) shall insure that the Mortgage creates a valid first Lien in and to the applicable Pledged Intervals free and clear of all defects, encumbrances and other Liens unacceptable to Lender except for Permitted Encumbrances and (v) shall contain such further endorsements and affirmative coverage as Lender may request in its Permitted Discretion and as available.  All premiums in respect of such title insurance policy shall be paid in full and evidence thereof shall be delivered to Lender.

3.2 Financial Statements, Reports and Other Information.

(a) Financial Reports.  Borrower shall furnish to Lender:

(i) as soon as available and in any event within ninety-one (91) calendar days after the end of each fiscal year of Guarantor, audited annual financial statements of Guarantor on a consolidated basis, including the notes thereto, consisting of a balance sheet at

(ii) as soon as available and in any event within one hundred eighty (180) calendar days after the end of each fiscal year of each Owner’s Association related to the Resort, audited annual financial statements of such Owner’s Association, including the notes thereto, consisting of (as applicable under GAAP) a balance sheet at the end of such completed fiscal year and the related statements of revenues, expenses and changes in fund balance for such completed fiscal year, which financial statements shall be prepared and certified without qualification by an independent certified public accounting firm of recognized standing;

(iii) as soon as available and in any event within forty-five (45) calendar days after the end of each fiscal quarter (other than the final fiscal quarter of each fiscal year; provided that, upon the request of Lender, Borrower shall deliver draft, annual financial statements of Guarantor, excluding notes, supplemental schedules and management discussion, within sixty (60) calendar days of the end of each fiscal year) of Guarantor, unaudited, quarterly financial statements of Guarantor on a consolidated basis, including the notes thereto, consisting of a balance sheet at the end of such completed fiscal quarter and the related statements of income, cash flows and owners’ equity (including retained earnings, such statement may be included in a note to the financial statements as allowed by GAAP) for such completed fiscal quarter.

(b) Inventory Report.  On or before the thirtieth (30th) day following the end of each calendar quarter, Borrower shall provide to Lender the following reports reasonably acceptable to Lender which set forth (i) a report of all Timeshare Units at the Resort (including all Pledged Inventory and all Recycled Inventory acquired during such calendar quarter) by location and type of Timeshare Interest, (ii) a report showing the actual sales price for Pledged Intervals released by Lender and sold by Borrower during such calendar quarter, and (iii) a report of the average price, in Dollars, to purchase one Point during the immediately preceding calendar quarter for purposes of determining the Adjusted Average Price Per Point.

(c) Sales Information.  On or before the twentieth (20th) day of each month, Borrower shall provide to Lender a report in a form and substance satisfactory to Lender showing the previous month’s sales of Timeshare Interests at the Resort.

(d) Other Materials.  Borrower shall furnish to Lender within ten (10) calendar days of Borrower’s receipt of Lender’s written request:

(i) such additional information, documents, statements, reports and other materials as Lender may request in writing in its reasonable discretion from time to time to the extent Borrower, its Affiliates and/or agents are able to produce such information, documents, statements, reports or other materials based on existing information, reports and/or accounting systems available to such Persons as of the date of such request; and

(ii) all federal, state, foreign (if applicable) and local tax returns and other reports which are required by law to be filed by Borrower with any Governmental Authority, excluding payroll taxes.

(e) Notices.  Borrower shall give Lender prompt written notice (and in any event within five (5) Business Days) of Borrower’s knowledge of (a) the occurrence of any Default or Event of Default, (b) any event which would be reasonably expected to result in a Material Adverse Effect or Material Adverse Change, (c) any material loss or damage to the Resort, (d) any material violation by Borrower of any Applicable Law, or (e) any breach of any material agreement adversely affecting the Resort.  Such notice shall include a detailed description of the applicable event, proceeding or loss and the actions Borrower or its Affiliates are taking or proposes to take with respect thereto.

(f) Borrower shall provide to Lender any other information, summaries or reports requested in writing by Lender in its Permitted Discretion.

3.3 Financial Covenants.  Borrower shall not permit the Loan to Value Ratio to exceed (a) during the period commencing on the date hereof and ending on (and including) June 25, 2016, thirteen and one half of one percent (13.5%), (b) during the period commencing on June 26, 2016 and ending on June 25, 2017, twelve and one half of one percent (12.5%), and (c) at any time thereafter, twelve percent (12%).

4.1 GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS; VENUE.

(a) UNLESS OTHERWISE SPECIFICALLY SET FORTH IN A PARTICULAR LOAN DOCUMENT, THE LOAN DOCUMENTS, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF A DIFFERENT JURISDICTION.

(b) BY EXECUTION AND DELIVERY OF EACH LOAN DOCUMENT TO WHICH IT IS A PARTY, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS NOTE SHALL AFFECT ANY RIGHT THAT LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS NOTE OR ANY OTHER LOAN DOCUMENT AGAINST ANY CREDIT PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) EACH CREDIT PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF RELATING TO THIS NOTE OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF PROCESS AND IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN ANY MORTGAGE.  NOTHING IN THIS NOTE WILL AFFECT THE RIGHT OF ANY PARTY TO THIS NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

4.2 Parties, Successors and Assigns.  This Note and the other Loan Documents shall inure to the benefit of Lender, any Transferee (as hereinafter defined) and all future holders of this Note, the Obligations and/or any of the Collateral, and each of their respective successors and/or assigns.  This Note and each other Loan Document shall be binding upon each Credit Party that is a party thereto and all other Persons (other than Lender) that are parties thereto and their respective successors and assigns, and no such Person may assign, delegate or transfer any of its right, title or interest in, to or under any Loan Document or any of its rights or obligations thereunder without the prior written consent of Lender.  No rights are intended to be created under this Note or any Loan Document for the benefit of any third party donee, creditor or incidental beneficiary of Borrower or any other Credit Party.  Nothing contained in this Note or

4.3 JURY WAIVER.

(a) EACH PARTY HEREBY (i) EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE PARTIES WITH RESPECT TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND (ii) AGREES AND CONSENTS THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS NOTE MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.

(b) IN THE EVENT ANY SUCH CLAIM OR CAUSE OF ACTION IS BROUGHT OR FILED IN ANY UNITED STATES FEDERAL COURT SITTING IN THE STATE OF CALIFORNIA OR IN ANY STATE COURT OF THE STATE OF CALIFORNIA, AND THE WAIVER OF JURY TRIAL SET FORTH IN SECTION 4.3(A) IS DETERMINED OR HELD TO BE INEFFECTIVE OR UNENFORCEABLE, THE PARTIES AGREE THAT ALL CLAIMS AND CAUSES OF ACTION SHALL BE RESOLVED BY REFERENCE TO A PRIVATE JUDGE SITTING WITHOUT A JURY, MUTUALLY ACCEPTABLE REFEREE OR, IF THE PARTIES CANNOT AGREE, A REFEREE SELECTED BY THE PRESIDING JUDGE OF THE LOS ANGELES COUNTY, CALIFORNIA.  SUCH PROCEEDING SHALL

(c) THE STIPULATIONS OF THE PARTIES IN SECTION 4.1 AND THIS SECTION 4.3 SHALL SURVIVE THE FINAL PAYMENT OF ALL OF THE OBLIGATIONS AND THE TERMINATION OF THIS NOTE AND THE OTHER LOAN DOCUMENTS.

4.4 Amendment and Restatement.   This Note is executed and delivered by the Borrower to amend, renew, restate, and further evidence the indebtedness evidenced by (i) that certain Secured Promissory Note, dated as of November 19, 2012, executed by the Borrower and payable to the order of Lender in the original principal sum of $5,000,000.00 (the “Original Note”) and (ii) that certain Amended and Restated Secured Promissory Note, dated as of July 10, 2013, executed by the Borrower and payable to the order of Lender in the original principal sum of $4,500,000.00 (the “Amended Note”).  This Note shall constitute a renewal, amendment, and restatement of the Original Note and the Amended Note.  This Note does not extinguish the indebtedness, liabilities, or other Obligations of Borrower arising under the Original Note or the Amended Note, and does not constitute a novation or payment of any part of the indebtedness, liabilities or other Obligations of Borrower evidenced by the Original Note or the Amended Note.  Borrower hereby agrees that the execution of this Note shall in no manner vitiate, impair or affect the liens and security interests created and evidenced by the Original Note, the Amended Note or any of the Loan Documents (as defined in the Original Note) in effect as of the Original Note Closing Date, the Amended Note Closing Date or created prior to the date hereof, and such liens and security interests shall not be and are not in any manner released or waived solely by execution of this Note.  Guarantor hereby ratifies and reaffirms all of its obligations under that certain Payment Guaranty dated November 19, 2012, by Guarantor in favor of Lender, and hereby acknowledges that such Guaranty is in full force and effect.

4.5 RELEASE.   FOR AND IN CONSIDERATION OF LENDER’S AGREEMENT CONTAINED HEREIN, BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER WAIVES AND DISCHARGES  LENDER FROM ALL POSSIBLE CLAIMS, COUNTERCLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIES WHATSOEVER, WHETHER KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL OR AT LAW OR IN EQUITY, IN WHOLE OR IN PART, ARISING ON OR BEFORE THE DATE HEREOF THAT BORROWER MAY NOW OR HEREAFTER HAVE AGAINST LENDER, IF ANY, IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS OR OTHERWISE, INCLUDING WITHOUT LIMITATION ARISING  DIRECTLY OR INDIRECTLY FROM THE ORIGINAL NOTE, ANY OF THE LOAN DOCUMENTS, THE RECEIVABLES LOAN DOCUMENTATION, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER ANY OF THE LOAN DOCUMENTS OR RECEIVABLES LOAN DOCUMENTATION AND/OR NEGOTIATION