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     (iii) “Business Day” means for all purposes, any day other than a Saturday, Sunday, orday on which national banks are authorized to be closed under the laws of the State ofTexas.     (iv) “Notice of Borrowing” means a notice substantially in the form of Exhibit A.     2. Promissory Note. The Loan shall be evidenced by a promissory note in the form ofExhibit B attached hereto, duly executed by Borrower (herein called, together with anyrenewals and extensions thereof, the “Note”), dated of even date herewith, in the principal amountof $1,700,000, and made payable to the order of Lender. Principal and interest on the Note shallbe due and payable in the manner and at the times set forth below with final maturity of the Notebeing on or before November 1, 2010 (the “Maturity Date”). Should the principal of, or anyinstallment of interest on, the Note become due and payable on any day other than a Business Day,the maturity thereof shall be extended to the next succeeding business day, and interest shall bepayable with respect to such extension.     All payments on the Note shall be made to Lender at its principal office in Dallas, Texas infederal or other immediately available funds, and payments shall be applied first to accruedinterest and then to principal.     The principal balance of, and interest on, the Note shall be due and payable as follows:     (a) Interest, computed as provided in the Note, shall accrue monthly, commencing on thedate of the first Advance, and thereafter, on the 1st day of eachsucceeding calendar month during the term of the Note, and all such accrued and unpaidinterest shall be due and payable on the Maturity Date; and     (b) Principal shall be due and payable in one (1) final installment, on the MaturityDate, in the amount of the unpaid principal balance of the Note as of such date.In addition to the foregoing, Borrower shall make mandatory prepayments of the principal of theNote: (a) on or before the last day of each March, June, September, and December (such dates beingreferred to as a “Cash Flow Payment Date”), equal to the Cash Flow Payment (hereafter defined) dueon such date; provided that Cash Flow (as defined below) sufficient to satisfy selling, general,and operating expenses (as determined by a budget of Borrower as acceptable to Lender in Lender’ssole discretion) for the calendar quarter immediately following the applicable Cash Flow PaymentDate, in a minimum amount of $2,500,000 per fiscal quarter, on an annualized basis, shall be setaside in a separate account in the name of Borrower each calendar quarter prior to any prepaymentsin respect of the Loan, (b) immediately upon the receipt of Net Proceeds in an amount in any singletransaction or series of transactions exceeding $150,000, of any sale, liquidation or disposition(other than in the ordinary course of Borrower’s business) of any assets of Borrower (and aftergiving effect to clause (a) immediately above), in the amount of such Net Proceeds (as definedbelow), and (c) within five days of the closing of an offering of any class of equity securities ofBorrower, in which Borrower receives aggregate gross proceeds of at least $1,700,000, in an amountequal to the proceeds received from Lender as a purchaser in such equity offering. Such mandatoryprepayments shall be applied to the principal balance of the Note in the inverse order of maturity.     In the event Borrower fails to make payment of the outstanding principal balance of, andinterest on, the Note due and payable on the Maturity Date, Lender shall have the right,exercisable at its option and upon notice to Borrower, to exchange the Note for shares of commonstock, par value $0.001 per share, of Borrower (the “Common Stock”). The number of shares ofCommon Stock issuable on conversion of the Note shall be equal to (x) the amount of the outstandingobligations on the Note due and payable, divided by (y) the Fair Market Value of the Common Stockon the Maturity Date. No fractional shares shall be issued.     As used herein: (a) the term “Cash Flow Payment” means, for any Cash Flow Payment Date, anamount equal to fifty percent (50%) of Borrower’s Cash Flow for the fiscal quarter ending as ofsuch Cash Flow Payment Date; (b) the term “Cash Flow” means, for any period, the net earnings (orloss) after taxes of Borrower for such period determined in accordance with GAAP (“Net Income”),plus all non-cash items reducing Net Income, minus all non-cash items increasingNet Income; provided, however, that if, for any period, such amount is less than zero, thenCash Flow for such period shall be equal to zero; (c) the term “Fair Market Value” means, as of aparticular date, (i) if the Common Stock is traded on a national securities exchange, the averageclosing sales price reported for the immediately preceding ten days, (ii) if the Common Stock istraded on the OTC Bulletin Board, the mean of the average closing bid price and the average closingask price reported for the immediately preceding ten days, or (iii)
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if the Common Stock is not publicly traded, the amount as determined in good faith by theBoard of Directors of Borrower; and (d) the term “Net Proceeds” means with respect to any sale ordisposition of property or assets (tangible or intangible) (an “asset disposition”), the grossproceeds, whether received in cash or otherwise, received, on or after the date of consummation ofsuch asset disposition, by Borrower from such asset disposition, after payment of all usual andcustomary brokerage commissions and all other reasonable fees and expenses related to such assetdisposition (including, without limitation, reasonable attorneys’ fees and closing costs andreasonable environmental remediation costs incurred in connection with such asset disposition).     3. Collateral. The Loan shall be secured by a perfected, first priority, securityinterest in and to the Collateral as set forth in the Pledge and Security Agreement dated November9, 2007, executed by Borrower for the benefit of Lender (as amended, modified, renewed, extended,revised, restated, or replaced, the “Security Agreement”).     4. Conditions Precedent. The obligation of Lender to make the Loan to Borrower issubject to the conditions precedent that, as of the date of the initial Advance of the Loan: (a)Lender shall have received duly executed copies of each document listed on Exhibit Cattached hereto, in form and substance acceptable to Lender and its legal counsel (such documentsand any modifications thereof, to be hereinafter collectively referred to as the “Loan Documents”);(b) all representations and warranties made by Borrower to Lender are true and correct, as if madeon such date, and no condition or event exists which constitutes an Event of Default (ashereinafter defined) or which, with the lapse of time and/or giving of notice, would constitute anEvent of Default; and (d) Borrower shall have paid to Lender on the earlier date of the first drawhereunder or the retirement of the Loan if no draw is made, as consideration for the making of theLoan, an origination fee equal to $10,000.     5. Representations and Warranties. In order to induce Lender to make the Loanhereunder, Borrower represents and warrants to Lender that:     (a) Borrower is a corporation, duly organized and in good standing, under the laws ofthe State of Nevada and has the power to own its property and to carry on its business ineach jurisdiction in which Borrower operates;     (b) Borrower has full power and authority to enter into this Agreement, to make theborrowing hereunder, to execute and deliver the Loan Documents and to incur the obligationsprovided for in the Loan Documents, all of which has been duly authorized by all necessarycorporate action;     (c) The Loan Documents are the legal and binding obligations of Borrower, enforceablein accordance with their respective terms, except as limited by bankruptcy, insolvency orother laws of general application relating to the enforcement of creditors’ rights;     (d) Neither the execution and delivery of this Agreement and the other Loan Documents,nor consummation of any of the transactions herein or therein contemplated, nor compliancewith the terms and provisions hereof or thereof, will contravene or conflict with anyprovision of law, statute or regulation to which Borrower is subject or any judgment,license, order or permit applicable to Borrower or any indenture, mortgage, deed of trust orother instrument to which Borrower may be subject; no consent, approval, authorization ororder of any court, governmental authority or third party is required in connection with theexecution and delivery by Borrower of this Agreement or any of the other Loan Documents orto consummate the transactions contemplated herein or therein;     (e) All financial statements delivered by Borrower to Lender prior to the date hereofare true and correct, fairly present the financial condition of such person and have beenprepared in accordance with generally accepted accounting principles, consistently applied,and no material adverse changes have occurred in the financial condition or business ofBorrower since the date of the most recent financial statements which Borrower has deliveredto Lender;     (f) No litigation, investigation, or governmental proceeding is pending, or, to theknowledge of any of Borrower’s officers, threatened against or affecting Borrower, which mayresult in any material adverse change in Borrower’s business, properties or operations;
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     (g) There is no fact known to Borrower that Borrower has not disclosed to Lender inwriting which may result in any material adverse change in Borrower’s business, propertiesor operations;     (h) Borrower owns all of the assets reflected on its most recent balance sheet free andclear of all liens, security interests or other encumbrances, except as previously disclosedin writing to Lender;     (i) The principal office, chief executive office and principal place of business ofBorrower is in Dallas, Texas;     (j) All taxes required to be paid by Borrower have in fact been paid;     (k) Borrower is not in violation of any law, ordinance, governmental rule or regulationto which it is subject, and is not in default under any material agreement, contract orunderstanding to which it is a party;     (l) Borrower and any properties or assets owned by Borrower are not in violation of, inany material respect, any environmental laws, nor is there existing, pending or threatenedany investigation or inquiry by any governmental authority pursuant to any environmentallaws, nor is there existing or pending any remedial obligations under any environmentallaws; and     (m) Borrower shall use the proceeds of all Advances solely to (i) finance the monthlycorporate overhead expenses of Borrower and its Subsidiaries (as defined below) in an amountnot to exceed $1,000,000 per month on an annualized basis, (ii) pay up to $3,000,000 inbreakage fees and other deal-related expenses associated with the aborted 144A and debtfinancing of the Yuma project, and (iii) pay transaction fees associated with the Loan.     6. Affirmative Covenants. Until payment in full of the Note and all other obligationsand liabilities of Borrower hereunder, Borrower agrees and covenants that (unless Lender shallotherwise consent in writing):     (a) Borrower shall, and shall cause each of its Subsidiaries to, conduct its businessin an orderly and efficient manner consistent with good business practices and in accordancewith all valid regulations, laws and orders of any governmental authority and will act inaccordance with customary industry standards in maintaining and operating its assets,properties and investments;     (b) Borrower shall, and shall cause each of its Subsidiaries to, maintain complete andaccurate books and records of its transactions in accordance with generally acceptedaccounting principles, and will give Lender access during business hours to all books,records and documents of Borrower and permit Lender to make and take away copies thereof;     (c) Borrower shall furnish to Lender as soon as available and in any event withinforty-five (45) days after the end of each quarterly fiscal period (except the last) of eachfiscal year of Borrower, copies of the balance sheet of Borrower and its Subsidiaries, on aconsolidated basis, as of the end of such fiscal period, and statements of income andretained earnings and changes in cash flow of Borrower and its Subsidiaries, on aconsolidated basis, for that quarterly fiscal period and for the portion of the fiscal yearending with such period, all in reasonable detail, and certified by the chief financialofficer of Borrower as being true and correct and as having been prepared in accordance withgenerally accepted accounting principles, consistently applied, subject to year-endadjustments;     (d) Borrower shall furnish to Lender as soon as available and in any event withinninety (90) days after the close of each fiscal year of Borrower, copies of the balancesheet of Borrower and its Subsidiaries, on a consolidated basis, as of the close of suchfiscal year, and statements of income and retained earnings and changes in cash flow ofBorrower and its Subsidiaries, on a consolidated basis, for such fiscal year, in each casesetting forth in comparative form the figures for the preceding fiscal year, all inreasonable detail and accompanied by an opinion thereon (which shall not be qualified byreason of any limitation imposed by Borrower) of independent public accountants ofrecognized national standings selected by Borrower and satisfactory to Lender, to the effectthat (i) such financial statements have been prepared in accordance with generally acceptedaccounting principles (except for changes in which such
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accountants concur), (ii) the examination of such accounts in connection with suchfinancial statements has been made in accordance with generally accepted auditing standards,and, accordingly, includes such tests of the accounting records and such other auditingprocedures as were considered necessary in the circumstances, and (iii) in making theiraudit, such accountants have not become aware of any condition or event which wouldconstitute a default or an Event of Default under any of the terms or provisions of thisAgreement (insofar as any such terms or provisions pertain to accounting matters) and, ifany such condition or event then exists, specifying in the nature and period of existencethereof;     (e) Borrower shall furnish to Lender, immediately upon becoming aware of the existenceof any condition or event constituting an Event of Default or event which, with the lapse oftime and/or giving of notice would constitute an Event of Default, written notice specifyingthe nature and period of existence thereof and any action which Borrower is taking orproposes to take with respect thereto;     (f) Borrower shall promptly notify Lender of (i) any material adverse change in itsfinancial condition or business; (ii) any default under any material agreement, contract orother instrument to which Borrower or any Subsidiary is a party or by which any of suchPersons properties are bound, or any acceleration of any maturity of any indebtedness owingby Borrower or any Subsidiary, (iii) any material adverse claim against or affectingBorrower, any Subsidiary, or any of their respective properties; and (iv) any litigation, orany claim or controversy which might become the subject of litigation, against Borrower orany Subsidiary or affecting any of Borrower’s or such Subsidiary’s property, if suchlitigation or potential litigation might, in the event of an unfavorable outcome, have amaterial adverse effect on Borrower’s or such Subsidiary’s financial condition or businessor might cause an Event of Default;     (g) Borrower shall promptly furnish to Lender, at Lender’s request, such additionalfinancial or other information concerning assets, liabilities, operations and transactionsof Borrower and its Subsidiaries as Lender may from time to time reasonably request;     (h) Borrower shall, and shall cause each of its Subsidiaries to, promptly pay alllawful claims, whether for labor, materials or otherwise, which might or could, if unpaid,become a lien or charge on any property or assets of Borrower or any Subsidiary, unless andto the extent only that the same are being contested in good faith by appropriateproceedings and reserves have been established therefor;     (i) Borrower shall, and shall cause each of its Subsidiaries to, maintain on theirrespective properties insurance of responsible and reputable companies in such amounts andcovering such risks as is prudent and is usually carried by companies engaged in businessessimilar to that of Borrower or such Subsidiary; Borrower shall, and shall cause each of itsSubsidiaries to, furnish Lender, on request, with certified copies of insurance policies orother appropriate evidence of compliance with the foregoing covenant;     (j) Borrower shall, and shall cause each of its Subsidiaries to, preserve and maintainall licenses, privileges, franchises, certificates and the like necessary for the operationof its business; and     (k) Borrower shall pay to Lender an unused facility fee on the daily average unusedamount of the Loan for the period from and including the date of this Agreement to andincluding the Maturity Date, at the rate of one half of one percent (0.50%) per annum basedon a 360 day year and the actual number of days elapsed. For the purpose of calculating theunused facility fee hereunder, the Loan shall be deemed utilized by the amount of alloutstanding Advances. Accrued unused facility fees shall be payable in arrears on the lastday of each calendar month, and on the Maturity Date.     (l) As used herein: (i) “Subsidiary” means (A) any corporation of which at least amajority of the outstanding shares of stock having by the terms thereof ordinary votingpower to elect a majority of the board of directors of such corporation (irrespective ofwhether or not at the time stock of any other class or classes of such corporation shallhave or might have voting power by reason of the happening of any contingency) is at thetime directly or indirectly owned or controlled by Borrower or one or more of itsSubsidiaries or by any Borrower and one or more of such Subsidiaries, and (B) any otherentity (x) of which at least a majority of the ownership, equity or voting interest is atthe time directly or indirectly owned or controlled by one or more of Borrower and itsSubsidiaries and (y) which is treated as a
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subsidiary in accordance with GAAP; (ii) “Person” means any individual, corporation,limited liability company, business trust, association, company, partnership, joint venture,governmental authority, or other entity, and shall include such Person’s heirs,administrators, personal representatives, executors, successors and assigns; and (iii)“GAAP” means generally accepted accounting principles, applied on a consistent basis, as setforth in Opinions of the Accounting Principles Board of the American Institute of CertifiedPublic Accountants and/or in statements of the Financial Accounting Standards Board and/ortheir respective successors and which are applicable in the circumstances as of the date inquestion.     7. Negative Covenants. Until payment in full of the Note and all other obligationsand liabilities of Borrower hereunder, Borrower covenants that it shall not, nor shall it permitany Subsidiary to (unless Lender shall otherwise consent in writing):     (a) create, incur or assume any indebtedness or borrow money, except for (i) the Loan,(ii) trade debt incurred in the ordinary course of Borrower’s or such Subsidiary’s business,(iii) debt reflected on Borrower’s most recent consolidated balance sheet, and (iv) debtthat is subordinated to the obligations and liabilities of Borrower represented by thisAgreement, on terms and conditions acceptable to Lender in its sole discretion;     (b) endorse, guarantee, or otherwise become liable for the obligations of any person,firm or corporation except for endorsements of negotiable instruments by Borrower or aSubsidiary in the ordinary course of business;     (c) mortgage, assign, encumber, hypothecate or grant a security interest in any ofBorrower’s or any Subsidiary’s assets, except (i) to Lender and (ii) liens securing theindebtedness permitted in Section 7(a)(v) above (provided, however, that the foregoing shallnot apply to inchoate liens for taxes which are not delinquent or which are being contestedin good faith and liens resulting from deposits to secure the payments of workmen’scompensation or social security or to secure the performance of bids or contracts in theordinary course of business);     (d) liquidate, dissolve or reorganize; or merge or consolidate with, or acquire all orsubstantially all of the assets of, any other company, firm or association; or make anyother substantial change in its capitalization or its business;     (e) pay any dividends on any of its outstanding stock, or purchase, redeem orrepurchase any of its stock;     (f) sell any of its assets used or useful in its business, except in the ordinarycourse of business; or sell any of its assets to any other person, firm or corporation withthe agreement that such assets shall be leased back to Borrower or such Subsidiary;     (g) own, purchase or acquire, directly or indirectly, any promissory notes, stock orsecurities of any other person, firm or corporation, other than ownership interests ofBorrower and its Subsidiaries in each of their respective Subsidiaries and securitiesguaranteed as to the principal and interest by the United States government (it beingunderstood by the Parties that Borrower has previously invested in certain preferred equitysecurities but will no longer invest in such securities); or make any loans or advances toany other person;     (h) permit any substantial change in its present executive management;     (i) enter into any transaction, including, without limitation, the purchase, sale, orexchange of property or the rendering of any service, with any Affiliate of Borrower or anySubsidiary, except (a) in the ordinary course of and pursuant to the reasonable requirementsof Borrower’s or such Subsidiary’s business and upon fair and reasonable terms no lessfavorable to Borrower or such Subsidiary than would be obtained in a comparable arm’s-lengthtransaction with a Person not an Affiliate (as defined below) of Borrower, (b) customaryindemnification agreements and insurance arrangements entered into for the benefit ofBorrower’s or such Subsidiary’s directors or officers, (c) customary employment arrangementswith employees and benefit programs (including, without limitation, arrangement with formeremployees
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such as equity redemption or severance programs), in each case on reasonable termsconsistent with the other provisions of this Agreement (as in effect from time to time), and(d) agreements with Lender; or     (j) As used herein, “Affiliate” means, as to any Person, any other Person (i) thatdirectly or indirectly, through one or more intermediaries, controls or is controlled by, oris under common control with, such Person; (ii) that directly or indirectly beneficiallyowns or holds five percent (5%) or more of any class of voting stock of such Person; or(iii) five percent (5%) or more of the voting stock of which is directly or indirectlybeneficially owned or held by such Person. The term “control” means the possession,directly or indirectly, of the power to direct or cause direction of the management andpolicies of a Person, whether through the ownership of voting securities, by contract, orotherwise; provided, however, in no event shall Lender be deemed an Affiliate of Borrower orany of its Subsidiaries or Affiliates.     8. Default. An Event of Default shall exist if any one or more of the followingevents (individually, an “Event of Default” and collectively, “Events of Default”) shall occur:     (a) Borrower shall fail to pay when due any principal of, or interest on, the Note orany other fee or payment due hereunder or under any of the Loan Documents;     (b) any representation or warranty made in any of the Loan Documents shall prove to beuntrue or inaccurate in any respect as of the date on which such representation or warrantyis made and such untruth or inaccuracy remains for greater than five (5) business days;     (c) default shall occur in the performance of any of the covenants or agreements ofBorrower or any Subsidiary contained herein or in any of the other Loan Documents and suchuntruth or inaccuracy remains for greater than five (5) business days ;     (d) Borrower shall (i) apply for or consent to the appointment of a receiver,custodian, trustee, intervenor or liquidator of such party or of all or a substantial partof such party’s assets, (ii) voluntarily become the subject of a bankruptcy, reorganizationor insolvency proceeding or be insolvent or admit in writing that such party is unable topay its debts as they become due or generally not pay such party’s debts as they become due,(iii) make a general assignment for the benefit of creditors (iv) file a petition or answerseeking reorganization or an arrangement with creditors or to take advantage of anybankruptcy or insolvency laws, (v) file an answer admitting the material allegations of, orconsent to, or default in answering, a petition filed against such party in any bankruptcy,reorganization or insolvency proceeding, (vi) become the subject of an order for reliefunder any bankruptcy, reorganization or insolvency proceeding, or (vii) fail to pay anymoney judgment against such party before the expiration of thirty days after such judgmentbecomes final and no longer subject to appeal;     (e) an order, judgment or decree shall be entered by any court of competentjurisdiction or other competent authority approving a petition appointing a receiver,custodian, trustee, intervenor or liquidator of Borrower or of all or substantially all ofBorrower’s assets, and such order, judgment or decree shall continue unstayed and in effectfor a period of thirty (30) days; or a complaint or petition shall be filed against Borrowerseeking or instituting a bankruptcy, insolvency, reorganization, rehabilitation orreceivership proceeding of Borrower, and such petition or complaint shall not have beendismissed within thirty (30) days;     (f) Borrower shall default in the payment of any material indebtedness of Borrower orin the performance of any of Borrower’s material obligations and such default shall continuefor more than any applicable period of grace or any affiliate of the Borrower shall defaultin the payment of any material indebtedness or in the performance of any of its materialobligations that has a material adverse effect on the Borrower and such default shallcontinue for more than thirty days; or     (g) Any final judgment(s) for the payment of money in excess of the sum of $100,000, individually or in the aggregate, shall be rendered against Borrower and suchjudgment(s) shall not be satisfied or discharged at least ten (10) days prior to the date onwhich any of Borrower’s assets could be lawfully sold to satisfy such judgment(s).
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     9. Remedies Upon Event of Default. If an Event of Default shall have occurred and becontinuing, then Lender at its option may (a) declare the entire unpaid balance of principal andaccrued interest of the Obligation (as defined in the Note) to be immediately due and payablewithout presentment or notice of any kind which Borrower hereby waives, (b) reduce any claim tojudgment, and/or (c) pursue and enforce any of Lender’s rights and remedies available pursuant toany applicable law or agreement including, without limitation, foreclosing all liens and securityinterests securing payment thereof or any part thereof; provided, however, in the case of any Eventof Default specified in (d) or (e) of Section 8 above with respect to Borrower, without any noticeto Borrower or any other act by Lender, the Obligations shall become immediately due and payablewithout presentment, demand, protest, or other notice of any kind, all of which are hereby waivedby Borrower.     10. Miscellaneous.     (a) Waiver. No failure to exercise, and no delay in exercising, on the part ofLender, any right hereunder shall operate as a waiver thereof, nor shall any single orpartial exercise thereof preclude any other or further exercise thereof or the exercise ofany other right. The rights of Lender hereunder and under the other Loan Documents shall bein addition to all other rights provided by law. No notice or demand given in any caseshall constitute a waiver of the right to take other action in the same, similar or otherinstances without such notice or demand.     (b) Notices. Any notices or other communications required or permitted to begiven by any of the Loan Documents must be given in writing and must be personally deliveredor mailed by prepaid certified or registered mail to the party to whom such notice orcommunication is directed at the address of such party as follows: (i) Borrower: 4100Spring Valley, Suite 1002, Dallas, Texas 75244, (ii) Lender: 4100 Spring Valley, Suite 1001,Dallas, Texas 75244. Any such notice or other communication shall be deemed to have beengiven (whether actually received or not) on the day it is personally delivered as aforesaidor, if mailed, on the third day after it is mailed as aforesaid. Any party may change itsaddress for purposes of this Agreement by giving notice of such change to all other partiespursuant to this Section 10(b).     (c) Governing Law. This Agreement and the other Loan Documents are beingexecuted and delivered, and are intended to be performed, in the State of Texas, and thesubstantive laws of Texas shall govern the validity, construction, enforcement andinterpretation of this Agreement and all other Loan Documents, except to the extent: (i)otherwise specified therein; or (ii) federal laws governing maximum interest rates shallprovide for rates of interest higher than those permitted under the laws of the State of NewYork.     (d) Invalid Provisions. If any provision of this Agreement is held to beillegal, invalid or unenforceable by a court of competent jurisdiction, then such provisionshall be severed from this Agreement and the remaining provisions shall remain in full forceand effect and shall not be affected by the illegal, invalid or unenforceable provision orby its severance from this Agreement.     (e) Maximum Interest Rate. Regardless of any provisions contained in thisAgreement, the Note or in any of the other Loan Documents, Lender shall never be deemed tohave contracted for or be entitled to receive, collect or apply as interest (whether termedinterest in the Loan Documents or deemed to be interest by judicial determination oroperation of law) on the Note, any amount in excess of the maximum rate of interestpermitted to be charged by applicable law, and, in the event Lender ever receives, collectsor applies as interest any such excess, such amount which would be excessive interest shallbe deemed to be a partial prepayment of principal and treated hereunder as such, and, if theprincipal balance of the Note is paid in full, any remaining excess shall forthwith be paidto Borrower. In determining whether or not the interest paid or payable under any specificcontingency exceeds the highest lawful rate, Borrower, and Lender shall, to the maximumextent permitted under applicable law, (i) characterize any non-principal payment (otherthan payments which are expressly designated as interest payments hereunder) as an expense,fee, or premium, rather than as interest, (ii) exclude voluntary prepayments and the effectthereof, and (iii) spread the total amount of interest throughout the entire contemplatedterm of the Note so that the interest rate is uniform throughout such term.
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     (f) Entirety and Amendments. The Loan Documents embody the entire agreementbetween the parties and supersede all prior agreements and understandings, if any, relatingto the subject matter hereof and thereof, and this Agreement and the other Loan Documentsmay be amended only by an instrument in writing executed by the party, or an authorizedofficer of the party, against whom such amendment is sought to be enforced.     (g) Parties Bound. This Agreement shall be binding upon and inure to thebenefit of the parties hereto and their respective successors, assigns and legalrepresentatives; provided, however, that Borrower may not, without the prior written consentof Lender, assign any rights, powers, duties or obligations hereunder.     (h) Expenses. Borrower will promptly pay all reasonable costs, fees andexpenses paid or incurred by Lender incident to this Agreement or incident to the collectionof the Loan hereunder (including the fees and expenses of counsel to Lender) provided nomore than $25,000 shall be paid for such costs, fees and expenses occurring prior to theexecution date of this Agreement.     (i) Headings. Section headings are for convenience of reference only and shallin no way affect the interpretation of this Agreement.     (j) Successors and Assigns. This Agreement is binding upon and shall inure tothe benefit of Lender and Borrower and their respective successors and assigns, except thatBorrower may not assign or transfer any of its rights, duties, or obligations under thisAgreement or the other Loan Documents without the prior written consent of Lender. Lendermay assign or transfer any of its rights, duties, or obligations under this Agreement or theother Loan Documents; provided however that, prior to the occurrence of an Event of Default,Lender shall obtain the consent of Borrower (which consent shall not be unreasonablywithheld or delayed) prior to any such assignment or transfer.     (k) Indemnification. Borrower will indemnify and hold Lender harmless from anyloss, liability, damages, judgments, and costs of any kind relating to or arising directlyor indirectly out of (a) this Agreement or any document required hereunder, (b) any creditextended or committed by Lender to Borrower hereunder, and (c) any litigation or proceedingrelated to or arising out of this Agreement, any such document, or any such credit. Thisindemnity includes but is not limited to attorneys’ fees (including the allocated cost ofin-house counsel). This indemnity extends to Lender and all of its directors, officers,employees, agents, successors, attorneys, and assigns. This indemnity will surviverepayment of the Borrower’s obligations to Lender. All sums due to Lender hereunder shallbe obligations of Borrower, due and payable immediately without demand.     THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOTBE CONTRADICTED OR PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.     THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of thedate first above written.      **BORROWER:**