IN IMMEDIATELY AVAILABLE FUNDS.
IF ANY PAYMENT
HEREUNDER BECOMES DUE AND PAYABLE ON A DAY OTHER THAN A BUSINESS DAY, SUCH
PAYMENT SHALL BE EXTENDED TO THE NEXT SUCCEEDING BUSINESS DAY AND INTEREST
THEREON SHALL BE PAYABLE AT THE THEN APPLICABLE RATE DURING SUCH EXTENSION.
AMOUNTS REPAID HEREUNDER MAY NOT BE REBORROWED BY THE BORROWERS.
11
(C)
MANDATORY PREPAYMENTS.
IF ANY BORROWER
RECEIVES EXCESS PROCEEDS IN EXCESS OF $20,000 IN THE AGGREGATE, THE LOAN SHALL
BE PREPAID AS SOON AS PRACTICABLE AND IN NO EVENT LATER THAN TWO (2) BUSINESS
DAYS FOLLOWING THE DATE OF RECEIPT OF SUCH EXCESS PROCEEDS, BY AN AMOUNT EQUAL
TO 100% OF SUCH EXCESS PROCEEDS.
(D)
OPTIONAL PREPAYMENT.
THE BORROWERS MAY AT
ANY TIME AND FROM TIME TO TIME PREPAY THE PRINCIPAL AMOUNT OF THE LOAN, IN WHOLE
OR IN PART, WITHOUT PREMIUM OR PENALTY, BUT TOGETHER WITH ALL ACCRUED BUT UNPAID
INTEREST.
(E)
PRIORITY OF PAYMENTS.
NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, ALL PAYMENTS OF PRINCIPAL, INTEREST, OR ANY
OTHER AMOUNT HEREUNDER IN RESPECT OF THE LOAN (WHETHER AT THE STATED MATURITY,
BY ACCELERATION OR OTHERWISE) BUT, FOR THE AVOIDANCE OF DOUBT, EXCLUDING
EXPENSES, SHALL BE MADE IN THE FOLLOWING ORDER OF PRIORITY:
(I)
FIRST, PAYMENT OF THE ACCRUED AND UNPAID
INTEREST ON THE LOAN DUE AND PAYABLE ON THE DATE THEREOF;
(II)
SECOND, PAYMENT OF OUTSTANDING PRINCIPAL ON
THE LOAN; AND
(III)
THIRD, PAYMENT OF ALL OTHER OBLIGATIONS.
SECTION 6.
Expenses.
(A)
EACH OF THE BORROWERS AGREES, JOINTLY AND SEVERALLY FROM TIME TO
TIME AFTER THE BORROWING DATE, TO PAY OR REIMBURSE THE LENDER FOR (I) REASONABLE
OUT-OF-POCKET COSTS AND EXPENSES (INCLUDING FEES AND DISBURSEMENTS OF COUNSEL
(INCLUDING REASONABLE FEES AND DISBURSEMENTS OF PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP) AND ACCOUNTANTS, COSTS AND EXPENSES OF DUE DILIGENCE, DUPLICATION,
AND MESSENGER COSTS AND EXPENSES) OF THE LENDER IN CONNECTION WITH THE
TRANSACTIONS AND ANY SUBSEQUENT AMENDMENT OR MODIFICATION OF THE LOAN DOCUMENTS
AND/OR OF THE SUBORDINATED INDEMNITY AGREEMENT AND RELATED INDEMNITY AGREEMENTS
NECESSARY IN CONNECTION THEREWITH AND (II) ALL FEES AND EXPENSES OF THE LENDER
(INCLUDING FEES AND DISBURSEMENTS OF COUNSEL (INCLUDING PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP)) INCURRED IN CONNECTION WITH THE ENFORCEMENT OF ANY OF
ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS (COLLECTIVELY, "EXPENSES").
(B)
ALL EXPENSES SHALL BE PAID WITHIN THREE (3) BUSINESS DAYS
FOLLOWING DEMAND BY THE LENDER AND (EXCEPT FOR EXPENSES INCURRED ON OR PRIOR TO
THE BORROWING DATE) MADE TOGETHER WITH THE DELIVERY BY LENDER OF A REASONABLE
INVOICE THEREFOR, IN IMMEDIATELY AVAILABLE FUNDS.
ONCE PAID, NONE OF THE
EXPENSES SHALL BE REFUNDABLE UNDER ANY CIRCUMSTANCES.
THE EXPENSES SHALL NOT BE
CREDITABLE AGAINST ANY OTHER AMOUNT PAYABLE IN CONNECTION WITH THE LOAN
DOCUMENTS OR OTHERWISE.
SECTION 7.
Conditions Precedent.
The obligation of the Lender to make the Loan on the Borrowing Date shall be
subject to the satisfaction or waiver by the Lender of the following conditions
precedent:
12
(A)
LOAN DOCUMENTS.
THE LENDER SHALL HAVE RECEIVED: (I) THIS NOTE,
EXECUTED AND DELIVERED