NOTE, ANY
OTHER RELATED AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
16.9
SEVERABILITY.
IN THE EVENT THAT ANY PROVISION OF THIS NOTE IS
INVALID OR UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH
PROVISION SHALL BE DEEMED
6
INOPERATIVE TO THE EXTENT THAT IT MAY CONFLICT THEREWITH AND SHALL BE DEEMED
MODIFIED TO CONFORM WITH SUCH STATUTE OR RULE OF LAW.
ANY SUCH PROVISION WHICH
MAY PROVE INVALID OR UNENFORCEABLE UNDER ANY LAW SHALL NOT AFFECT THE VALIDITY
OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS NOTE.
16.10
MAXIMUM PAYMENTS.
NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
ESTABLISH OR REQUIRE THE PAYMENT OF A RATE OF INTEREST OR OTHER CHARGES IN
EXCESS OF THE MAXIMUM PERMITTED BY APPLICABLE LAW.
IN THE EVENT THAT THE RATE
OF INTEREST REQUIRED TO BE PAID OR OTHER CHARGES HEREUNDER EXCEED THE MAXIMUM
RATE PERMITTED BY SUCH LAW, ANY PAYMENTS IN EXCESS OF SUCH MAXIMUM RATE SHALL BE
CREDITED AGAINST AMOUNTS OWED BY THE COMPANY TO THE HOLDER AND THUS REFUNDED TO
THE COMPANY.
16.11
SECURITY INTEREST AND GUARANTEE.
THE HOLDER HAS BEEN GRANTED A
SECURITY INTEREST (I) IN CERTAIN ASSETS OF THE COMPANY AND ITS SUBSIDIARIES AS
MORE FULLY DESCRIBED IN THE MASTER SECURITY AGREEMENT DATED AS OF FEBRUARY 17,
2006, AS AMENDED, RESTATED, REAFFIRMED, MODIFIED AND/OR SUPPLEMENTED FROM TIME
TO TIME AND (II) IN THE EQUITY INTERESTS OF THE COMPANY'S SUBSIDIARIES PURSUANT
TO THE STOCK PLEDGE AGREEMENT DATED AS OF FEBRUARY 17, 2006, AS AMENDED,
RESTATED, REAFFIRMED, MODIFIED AND/OR SUPPLEMENTED FROM TIME TO TIME.
THE
OBLIGATIONS OF THE COMPANY UNDER THIS NOTE ARE GUARANTEED BY CERTAIN
SUBSIDIARIES OF THE COMPANY PURSUANT TO THE GUARANTY DATED AS OF FEBRUARY 17,
2006, AS AMENDED, RESTATED, REAFFIRMED, MODIFIED AND/OR SUPPLEMENTED FROM TIME
TO TIME.
16.12
CONSTRUCTION.
EACH PARTY ACKNOWLEDGES THAT ITS LEGAL COUNSEL
PARTICIPATED IN THE PREPARATION OF THIS NOTE AND, THEREFORE, STIPULATES THAT THE
RULE OF CONSTRUCTION THAT AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING
PARTY SHALL NOT BE APPLIED IN THE INTERPRETATION OF THIS NOTE TO FAVOR ANY PARTY
AGAINST THE OTHER.
5.13
Registered Obligation. This Note is intended to be a registered
obligation within the meaning of Treasury Regulation Section 1.871-14(c)(1)(i)
and the Company (or its agent) shall register this Note (and thereafter shall
maintain such registration) as to both principal and any stated interest.
Notwithstanding any document, instrument or agreement relating to this Note to
the contrary, transfer of this Note (or the right to any payments of principal
or stated interest thereunder) may only be effected by (i) surrender of this
Note and either the reissuance by the Company of this Note to the new holder or
the issuance by the Company of a new instrument to the new holder, or (ii)
transfer through a book entry system maintained by the Company (or its agent),
within the meaning of Treasury Regulation Section 1.871-14(c)(1)(i)(B).
[Balance of page intentionally left blank; signature page follows]
7
IN WITNESS WHEREOF, the Company has caused this Secured Term Note