AT ITS OPTION, MAY ELECT, IN
ADDITION TO ALL RIGHTS AND REMEDIES OF THE HOLDER UNDER THE SECURITY AGREEMENT
AND THE OTHER ANCILLARY AGREEMENTS AND ALL OBLIGATIONS AND LIABILITIES OF EACH
COMPANY UNDER THE SECURITY AGREEMENT AND THE OTHER ANCILLARY AGREEMENTS, TO
REQUIRE THE COMPANIES, JOINTLY AND SEVERALLY, TO MAKE A DEFAULT PAYMENT
("DEFAULT PAYMENT").
THE DEFAULT PAYMENT SHALL BE ONE HUNDRED THIRTY PERCENT
(130%) OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE NOTE, PLUS ACCRUED BUT UNPAID
INTEREST, ALL OTHER FEES THEN REMAINING UNPAID, AND ALL OTHER AMOUNTS PAYABLE
HEREUNDER.
THE DEFAULT PAYMENT SHALL BE APPLIED FIRST TO ANY FEES DUE AND
PAYABLE TO THE HOLDER PURSUANT TO THE NOTES, THE SECURITY AGREEMENT AND/OR THE
ANCILLARY AGREEMENTS, THEN TO ACCRUED AND UNPAID INTEREST DUE ON THE NOTES, THE
SECURITY AGREEMENT AND THEN TO THE OUTSTANDING PRINCIPAL BALANCE OF THE NOTES.
THE DEFAULT PAYMENT SHALL BE DUE AND PAYABLE IMMEDIATELY ON THE DATE THAT THE
HOLDER HAS EXERCISED ITS RIGHTS PURSUANT TO THIS SECTION 4.3.
ARTICLE V
MISCELLANEOUS
5.1
ISSUANCE OF NEW NOTE.
UPON ANY PARTIAL PAYMENT OF THIS NOTE, A
NEW NOTE CONTAINING THE SAME DATE AND PROVISIONS OF THIS NOTE SHALL, AT THE
REQUEST OF THE HOLDER, BE ISSUED BY THE COMPANIES TO THE HOLDER FOR THE
PRINCIPAL BALANCE OF THIS NOTE AND INTEREST WHICH SHALL NOT HAVE BEEN PAID.
5.2
CUMULATIVE REMEDIES.
THE REMEDIES UNDER THIS NOTE SHALL BE
CUMULATIVE.
5.3
FAILURE OR INDULGENCE NOT WAIVER.
NO FAILURE OR DELAY ON THE PART
OF THE HOLDER HEREOF IN THE EXERCISE OF ANY POWER, RIGHT OR PRIVILEGE HEREUNDER
SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF
ANY SUCH POWER, RIGHT OR PRIVILEGE PRECLUDE OTHER OR FURTHER EXERCISE THEREOF OR
OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
ALL RIGHTS AND REMEDIES EXISTING
HEREUNDER ARE CUMULATIVE TO, AND NOT EXCLUSIVE OF, ANY RIGHTS OR REMEDIES
OTHERWISE AVAILABLE.
5.4
NOTICES.
ANY NOTICE HEREIN REQUIRED OR PERMITTED TO BE GIVEN
SHALL BE IN WRITING AND SHALL BE DEEMED EFFECTIVE: (A) UPON PERSONAL DELIVERY TO
THE PARTY NOTIFIED, (B) WHEN SENT BY CONFIRMED TELEX OR FACSIMILE IF SENT DURING
NORMAL BUSINESS HOURS OF THE RECIPIENT, IF NOT, THEN ON THE NEXT BUSINESS DAY,
(C) FIVE DAYS AFTER HAVING BEEN SENT BY REGISTERED OR CERTIFIED MAIL,
3
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, OR (D) ONE DAY AFTER DEPOSIT WITH A
NATIONALLY RECOGNIZED OVERNIGHT COURIER, SPECIFYING NEXT DAY DELIVERY, WITH
WRITTEN VERIFICATION OF RECEIPT.
ALL COMMUNICATIONS SHALL BE SENT TO THE
RESPECTIVE COMPANY AT THE ADDRESS PROVIDED FOR SUCH COMPANY IN THE SECURITY
AGREEMENT EXECUTED IN CONNECTION HEREWITH, AND TO THE HOLDER AT THE ADDRESS
PROVIDED IN THE SECURITY AGREEMENT FOR SUCH HOLDER, WITH A COPY TO JOHN E.
TUCKER, ESQ., 825 THIRD AVENUE, 14TH FLOOR, NEW YORK, NEW YORK 10022, FACSIMILE
NUMBER (212) 541-4434, OR AT SUCH OTHER ADDRESS AS THE RESPECTIVE COMPANY OR THE
HOLDER MAY DESIGNATE BY TEN DAYS ADVANCE WRITTEN NOTICE TO THE OTHER PARTIES
HERETO.
5.5
AMENDMENT PROVISION.
THE TERM "NOTE" AND ALL REFERENCES