|
(i) Guarantor revokes or disavows, or attempts to revoke or disavow, the Guaranty; or
<br />(j) (i) Any material adverse change in the business, operations, results of operations, assets,
<br />liabilities or condition (financial or otherwise) of Debtor; or (ii) any material impairment of the
<br />ability of (A) Debtor to perform its obligations under this Note or any other Transaction
<br />Document, (B) Creditor to enforce the obligations of Debtor hereunder or under any other
<br />Transaction Document, or (C) Creditor to realize upon any collateral securing Debtor's
<br />obligations to Creditor.
<br />8. If (a) any Event of Default described in item 7(f) above shall occur, the outstanding
<br />unpaid principal balance of this Note, the accrued interest thereon and all other obligations of Debtor to
<br />the Creditor shall automatically become immediately due and payable; or (b) any other Event of Default
<br />shall occur and be continuing, then the Creditor may take any or all of the following actions: (i) declare
<br />the outstanding unpaid principal balance of this Note, the accrued and unpaid interest thereon and all
<br />other obligations of Debtor to the Creditor to be forthwith due and payable, whereupon the outstanding
<br />unpaid principal balance of this Note, all accrued and unpaid interest thereon and all such obligations
<br />shall immediately become due and payable, in each case without demand or notice of any kind, all of
<br />which are hereby expressly waived, anything in this Note or any other agreements to the contrary
<br />notwithstanding, (ii) exercise all rights and remedies hereunder and under any other Transaction
<br />Document, and (iii) enforce all rights and remedies under any applicable law. Failure to exercise any
<br />right or remedy provided for or referenced herein shall not constitute a waiver of the right to exercise the
<br />same in connection with the applicable Event of Default or any subsequent Event of Default.
<br />9. Debtor hereby waives demand, presentment for payment, notice of nonpayment, protest
<br />and notice of protest hereon, and agrees that when or at any time after this Note becomes due, the holder
<br />hereof may, without notice, offset or charge this Note against any amounts owed by the holder hereof to
<br />Debtor. Debtor further agrees (a) that, without any notice Creditor, may from time to time extend, renew
<br />or otherwise modify the dates or amounts of payment or release any collateral security for this Note, with
<br />or without consideration, and that in any such case Debtor and each endorser will continue to be liable to
<br />pay the unpaid balance of the indebtedness evidenced by this Note as so extended, renewed or modified
<br />and notwithstanding any such release, and (b) to pay all costs of collection, including reasonable
<br />attorneys' fees, if any payment is not made when due, and all costs and expenses, including reasonable
<br />attorneys' fees, incurred in protecting or preserving the collateral security for this Note. Such attorneys'
<br />fees shall be owed (i) whether suit is brought or not, and (ii) for any kind or an action, including, but not
<br />limited to, any bankruptcy, insolvency or similar proceedings and any probate or other proceedings
<br />involving a decedent, but shall not be owed in the case where Debtor is the prevailing party in actions or
<br />proceedings brought by Debtor against Creditor or actions or proceedings brought by Creditor against
<br />Debtor.
<br />10. The execution, delivery, and performance of this Note by Debtor and each other
<br />Transaction Document to which it is a party, and the consummation of the transactions contemplated
<br />hereby and thereby, (i) are within the company powers of Debtor, (ii) have been duly authorized by
<br />Debtor's managers or members and no other proceedings on the part of Debtor are necessary, (iii) will not
<br />violate any provisions of Debtor's organizational documents or other documents of company governance,
<br />(iv) will not cause any breach or default under any contract or other agreement under which Debtor is a
<br />party and (v) will constitute the legal, valid, and binding obligations of Debtor. The recitals set forth
<br />herein and all information provided by Debtor to Creditor, previously or in connection with this
<br />Agreement, whether communicated orally or in writing, is true and correct in all material respects. The
<br />obligation of Debtor to repay the indebtedness evidenced by this Note is absolute and unconditional, and
<br />nothing has occurred that would give Debtor grounds to assert a defense, offset or counterclaim to the
<br />obligations of Debtor to repay such indebtedness.
<br />4489181v2
<br />02/15/12
<br />3
<br />
|