of the Purchasers, set forth in the
Security Agreement.
9.
Priority.
The right of repayment of
principal and interest on this Note shall rank pari passu with the right of
repayment of principal and interest on the Fall 2008 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)
SUBJECT TO THE SUBORDINATION AGREEMENT,
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
3
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 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