THE RECEIPT BY LENDER OF A REQUEST FOR LOAN PURSUANT TO SECTION 1.1(B) BELOW.
(B)
REQUESTS FOR LOANS.
WHEN BORROWER DESIRES
TO OBTAIN A SUBSEQUENT ADVANCE, BORROWER SHALL MAKE A REQUEST TO LENDER (WHICH
REQUEST SHALL BE IRREVOCABLE) BY FACSIMILE TRANSMISSION NO LATER THAN NOON
CALIFORNIA TIME ON THE THIRD (3RD) BUSINESS DAY IMMEDIATELY PRECEDING THE DATE
ON WHICH THE SUBSEQUENT ADVANCE IS TO BE MADE (THE "SUBSEQUENT ADVANCE REQUEST")
AND SUCH SUBSEQUENT ADVANCE REQUEST SHALL INCLUDE AN ITEMIZED INVOICE FOR THE
AGREED UPON AMOUNTS COMPRISING THE PRINCIPAL AMOUNT OF THE SUBSEQUENT ADVANCE
REQUESTED BY BORROWER.
THE SUBSEQUENT ADVANCE REQUEST SHALL BE SIGNED BY AN
AUTHORIZED OFFICER OF BORROWER.
LENDER MAY RELY ON ANY SUBSEQUENT ADVANCE
REQUEST GIVEN BY A PERSON WHOM LENDER BELIEVES IS AN AUTHORIZED REPRESENTATIVE
OF BORROWER, AND BORROWER WILL INDEMNIFY LENDER FOR ANY LOSS LENDER SUFFERS AS A
RESULT OF THAT RELIANCE.
1.2
PROMISSORY NOTES; MATURITY.
(A)
BORROWER PROMISES TO EXECUTE AND
DELIVER TO LENDER SECURED PROMISSORY NOTES PREPARED BY LENDER IN SUBSTANTIALLY
THE FORM ATTACHED HERETO AS EXHIBIT A IN THE ORIGINAL PRINCIPAL AMOUNT OF EACH
OF THE FIRST ADVANCE, THE SECOND ADVANCE AND ANY SUBSEQUENT ADVANCE AT THE TIME
THAT EACH SUCH ADVANCE IS MADE AS EVIDENCE OF SUCH ADVANCE (EACH, A "NOTE").
THE AGGREGATE PRINCIPAL AMOUNT OF THE ADVANCES SHALL BEAR INTEREST THEREON FROM
THE FUNDING DATE OF EACH SUCH ADVANCE (THE "ADVANCE DATE"), AT THE RATE OF FIVE
PERCENT (5.0%) PER ANNUM, BASED UPON A 360 DAY YEAR FOR THE ACTUAL NUMBER OF
DAYS ELAPSED. THE ENTIRE AMOUNT OF OUTSTANDING PRINCIPAL, ACCRUED INTEREST AND
ANY UNPAID FEES AND EXPENSES UNDER AND WITH RESPECT TO THE ADVANCES SHALL BE DUE
AND PAYABLE ON THE EARLIER TO OCCUR OF (I) THE OCCURRENCE OF AN EVENT OF DEFAULT
(AS DEFINED HEREIN); OR (II) 180 DAYS FOLLOWING THE DATE OF TERMINATION OF THE
ACQUISITION AGREEMENT PURSUANT TO SECTION 5.1 THEREOF.
IN THE EVENT THAT THE
CLOSING (AS DEFINED IN THE ACQUISITION AGREEMENT) TAKES PLACE, THE ENTIRE AMOUNT
OF OUTSTANDING PRINCIPAL, ACCRUED INTEREST AND ANY UNPAID FEES AND EXPENSES
UNDER AND WITH RESPECT TO THE ADVANCES SHALL BE DUE AND PAYABLE UPON THE DEMAND
OF LENDER.
ALL OF THE ADVANCES, LOAN AND OTHER SECURED LIABILITIES (AS DEFINED
IN SECTION 3 OF THIS AGREEMENT) ARISING UNDER THIS AGREEMENT, THE NOTES AND ANY
OTHER DOCUMENTS EXECUTED IN CONNECTION WITH THE SECURED LIABILITIES OR THE
TRANSACTIONS CONTEMPLATED HEREBY (THE "LOAN DOCUMENTS") SHALL CONSTITUTE ONE
GENERAL OBLIGATION OF BORROWER SECURED BY THE COLLATERAL.
(b)
Borrower may, at its option, prepay any or
all amounts outstanding under the Advances in whole at any time or in part from
time to time without penalty or premium.
All prepayments shall be accompanied
by the payment of accrued and unpaid interest on the principal amount of the
Advances being prepaid through the date of such prepayment.
2
1.3
INTEREST; MAXIMUM RATE; DEFAULT.
(A)
NOTWITHSTANDING ANY PROVISION IN THIS
AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT TO THE CONTRARY, IT IS THE
PARTIES INTENT