LATE CHARGES AND EXPENSES.
BORROWER AGREES TO PAY, UPON DEMAND BY BANK, FOR
EACH PAYMENT PAST DUE FOR FIFTEEN (15) OR MORE CALENDAR DAYS, A LATE CHARGE IN
AN AMOUNT EQUAL TO THE LESSER OF (1) FOUR PERCENT (4%) OF THE AMOUNT OF THE
PAYMENT PAST DUE OR (2) THE MAXIMUM PERCENTAGE OF THE PAYMENT PAST DUE PERMITTED
BY APPLICABLE LAW, OR THE MAXIMUM AMOUNT IF NOT EXPRESSED AS A PERCENTAGE.
IF
THIS NOTE IS NOT PAID IN FULL WHENEVER IT BECOMES DUE AND PAYABLE, BORROWER
AGREES TO PAY ALL COSTS AND EXPENSES OF COLLECTION, INCLUDING REASONABLE
ATTORNEYS' FEES.
THE BORROWER HEREBY STIPULATES THAT REASONABLE ATTORNEYS' FEES
SHALL BE FIFTEEN PERCENT (15%) OF THE OUTSTANDING BALANCE OWING UNDER THIS NOTE
AFTER DEFAULT.
DEFAULT. ANY ONE OR MORE OF THE FOLLOWING SHALL CONSTITUTE AN EVENT OF DEFAULT
("EVENT OF DEFAULT") UNDER THIS NOTE: (1) THE FAILURE OF BORROWER TO PAY WHEN
DUE ANY PAYMENT DESCRIBED HEREIN, WHETHER OF PRINCIPAL, INTEREST, FEES, PREMIUMS
OR OTHERWISE; AND (2) THE OCCURRENCE OF ANY "EVENT OF DEFAULT" UNDER AND AS
DEFINED IN THE LOAN AND SECURITY AGREEMENT.
iv
ACCELERATION.
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, (1) THE ENTIRE UNPAID
PRINCIPAL BALANCE OF THIS NOTE, TOGETHER WITH ALL OTHER AMOUNTS OWING AND ALL
OTHER AMOUNTS TO BE OWING UNDER THIS NOTE, SHALL, AT THE OPTION OF BANK, BECOME
IMMEDIATELY DUE AND PAYABLE, WITHOUT NOTICE OR DEMAND, AND (2) THE BANK MAY,
BOTH BEFORE AND AFTER ACCELERATION, EXERCISE ANY OF AND ALL OF ITS OTHER RIGHTS
AND REMEDIES UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS, AS WELL AS ANY
ADDITIONAL RIGHTS AND REMEDIES IT MAY HAVE AT LAW AND IT MAY HAVE IN EQUITY, TO
RECOVER FULL PAYMENT OF THE BALANCE (PRINCIPAL, INTEREST, FEES, PREMIUMS,
CHARGES AND COSTS AND EXPENSES) OWING UNDER THIS NOTE.
THE FAILURE BY BANK TO
EXERCISE ANY OF ITS OPTIONS SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT TO
EXERCISE SAME IN THE EVENT OF ANY SUBSEQUENT DEFAULT.
MISCELLANEOUS.
USE OF TERMS. THE TERM "NOTE" REFERS TO THIS COMMERCIAL PROMISSORY NOTE: C & I;
THE TERM "LOAN DOCUMENT" REFERS TO THIS NOTE, THE COMMITMENT LETTER, THE LOAN
AND SECURITY AGREEMENT AND ANY SECURITY DOCUMENTS AND OTHER DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED TO BANK OR OTHERS ON BANK'S BEHALF IN
CONNECTION WITH THIS NOTE; AND THE TERM "BORROWER" REFERS TO ALL SIGNATORIES OF
THIS NOTE COLLECTIVELY AND SEVERALLY, AS THE CONTEXT OF THIS NOTE REQUIRES, AND
ALL SIGNATORIES OF THIS NOTE SHALL BE AND THE SAME ARE JOINTLY AND SEVERALLY
LIABLE HEREUNDER.
WAIVER.
BORROWER WAIVES PRESENTMENT, DEMAND, PROTEST AND NOTICE OF DISHONOR,
WAIVES ANY RIGHTS WHICH IT MAY HAVE TO REQUIRE BANK TO PROCEED AGAINST ANY OTHER
PERSON OR PROPERTY, AGREES THAT WITHOUT NOTICE TO ANY PERSON AND WITHOUT
AFFECTING ANY PERSON'S LIABILITY UNDER THIS NOTE, BANK, AT ANY TIME OR TIMES,
MAY GRANT EXTENSIONS OF THE TIME FOR PAYMENT OR OTHER INDULGENCES TO ANY PERSON
OR PERMIT THE RENEWAL, AMENDMENT OR MODIFICATION OF THIS NOTE OR ANY OTHER