This Note is entitled to the benefits, granted to the
Agent on behalf of the Purchasers, set forth in the Security Agreement.
9.
Priority.
The indebtedness under this Note shall rank senior to
the indebtedness under the Fall 2008 Notes and the Spring 2009 Notes.
10.
Definitions.
Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Note Purchase
Agreement.
11.
Miscellaneous.
The following general provisions apply:
(A)
THIS NOTE, AND THE OBLIGATIONS AND RIGHTS OF THE BORROWERS AND THE
HOLDER HEREUNDER, SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
BORROWERS, THE HOLDER, AND THEIR RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS.
(B)
ALL NOTICES, REQUESTS, CONSENTS AND DEMANDS HEREUNDER SHALL BE
MADE IN WRITING IN THE MANNER DESCRIBED IN THE NOTE PURCHASE AGREEMENT.
(C)
WHENEVER POSSIBLE, EACH PROVISION OF THIS NOTE WILL BE INTERPRETED
IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS NOTE IS HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY
RESPECT UNDER ANY APPLICABLE LAW OR RULE IN ANY JURISDICTION, SUCH INVALIDITY,
ILLEGALITY OR UNENFORCEABILITY WILL NOT AFFECT ANY OTHER PROVISION OR ANY OTHER
JURISDICTION, BUT THIS NOTE WILL BE REFORMED, CONSTRUED AND ENFORCED IN SUCH
JURISDICTION TO THE GREATEST EXTENT POSSIBLE TO CARRY OUT THE INTENTIONS OF THE
PARTIES HERETO.
(D)
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW
YORK.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY CONSENTS TO THE
(NON-EXCLUSIVE) JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF ANY
FEDERAL COURT LOCATED THEREIN IN CONNECTION WITH ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE AND WAIVES ANY OBJECTION TO
VENUE IN THE STATE OF NEW YORK.
(E)
RECOURSE UNDER THIS NOTE SHALL BE SOLELY AS PROVIDED IN THE NOTE
PURCHASE AGREEMENT AND THE LOAN DOCUMENTS AND IN NO EVENT TO THE OFFICERS,
DIRECTORS OR SHAREHOLDERS OF THE BORROWERS.
(F)
NO PROVISION IN THIS NOTE, OR IN ANY INSTRUMENT OR ANY OTHER
DOCUMENT EVIDENCING THE OBLIGATIONS HEREUNDER, EXECUTED BY THE BORROWERS OR ANY
GUARANTOR, ENDORSER OR OTHER PARTY NOW OR HEREAFTER BECOMING LIABLE FOR PAYMENT
OF THIS NOTE, SHALL REQUIRE THE PAYMENT OR PERMIT THE COLLECTION OF INTEREST IN
EXCESS OF THE MAXIMUM RATE.
IF ANY EXCESS OF INTEREST IN SUCH RESPECT IS
PROVIDED FOR HEREIN OR IN ANY SUCH INSTRUMENT, OR OTHER DOCUMENT, THE PROVISIONS
OF THIS PARAGRAPH SHALL GOVERN, AND
3
NEITHER OF THE BORROWERS NOR ANY GUARANTOR, ENDORSER OR OTHER PARTY SHALL BE
OBLIGATED TO PAY THE AMOUNT OF SUCH INTEREST TO THE EXTENT THAT IT IS IN EXCESS
OF THE MAXIMUM RATE.
THE INTENTION OF THE BORROWERS AND THE HOLDER BEING TO
CONFORM STRICTLY TO ANY APPLICABLE FEDERAL OR STATE USURY LAWS NOW IN FORCE, ALL
PROMISSORY NOTES, INSTRUMENTS AND OTHER DOCUMENTS EXECUTED BY THE BORROWERS OR
ANY GUARANTOR, ENDORSER