PROMISSORY NOTE
Exhibit
99.2
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$5,000,000
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July
30, 2010
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This
PROMISSORY NOTE (hereinafter, this “Note”) is executed
and delivered under and pursuant to the terms of that certain Purchase
Agreement, dated as of June 17, 2010 (as it may be amended, waived, supplemented
or otherwise modified from time to time, the “Purchase Agreement”),
by and among XXX.XXX GROUP, INC. (the “Borrower”),
XXXXXXXX.XXX GP (CAYMAN) LTD. (the “Seller
Representative”), XXXXXXXX.XXX (CAYMAN) LIMITED PARTNERSHIP (the “Company”) and the
Sellers named therein. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Purchase
Agreement.
FOR VALUE
RECEIVED, the sufficiency of which is hereby acknowledged by the Borrower, the
undersigned Borrower HEREBY PROMISES TO PAY to the order of the Seller
Representative, acting for and on behalf of the Sellers (the “Holders”), the
principal sum of $5,000,000, which amount is subject to (a) reductions pursuant
to Section 10.06(b) of the Purchase Agreement and (b) prepayments in accordance
with the terms and provisions hereof, together with interest accrued on the
principal amount outstanding from time to time hereunder at the times and in the
manner set forth in Article II.
ARTICLE
I
DEFINITIONS
SECTION
1.01. Certain Defined
Terms. For
purposes of this Note:
“Agent” means any
administrative agent, trustee or similar agent under the Senior
Indebtedness.
“Change of Control”
means (a) the acquisition of ownership, directly or indirectly, beneficially or
of record, by any Person (as defined in the Credit Agreement) or group (within
the meaning of the Exchange Act (as defined in the Credit Agreement) and the
rules of the SEC (as defined in the Credit Agreement)thereunder as in effect on
the date hereof), of shares representing more than 35% of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock (as defined
in the Credit Agreement) of the Borrower; or (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated.
“Credit Agreement”
means the Credit Agreement, dated as of July 30, 2010 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”),
among the Borrower, the Lenders from time to time party thereto, Xxxxx Fargo
Bank, National Association, as Syndication Agent, and Royal Bank of Canada, as
Administrative Agent.
“Enforcement
Action” shall mean (a) to take
from or for the account of the Borrower, by set-off or in any other manner, the
whole or any part of any moneys which may now or hereafter be owing by the
Borrower with respect to the Subordinated Indebtedness, (b) to xxx for payment
of the whole or any part of the Subordinated Indebtedness, or to initiate or
participate with others in any suit, action or proceeding against the Borrower
to (i) enforce payment of or to collect the whole or any part of the
Subordinated Indebtedness or (ii) commence judicial enforcement of any of the
rights and remedies under this Note or applicable Law with respect to the
Subordinated Indebtedness, (c) to accelerate the Subordinated Indebtedness, or
(d) take any action under the provisions of any applicable law, including,
without limitation, the Uniform Commercial Code, or under any contract or
agreement, to enforce, foreclose upon, take possession of or sell any property
or assets of the Borrower.
“Event of Default” has
the meaning set forth in Section 2.05.
“Extended Term” means
the period beginning on the day after the two-year anniversary of the Maturity
Date and ending on the date that all amounts payable to the Seller
Representative, acting for and on behalf of the Holders, pursuant to this Note
have been paid in full.
“Initial Term” means
the period beginning on the date hereof and ending on the Maturity
Date.
“Lenders” means the
agents, letter of credit issuers and lenders at any time party to any Senior
Indebtedness.
“Maturity Date” means
July 30, 2013.
“Payment Blockage
Period” has the meaning set forth in Section 3.02(c).
“Senior Indebtedness”
means all obligations of the Borrower now or hereafter existing under, or with
respect to, the Loan Documents (as defined in the Credit Agreement), as may be
amended, waived, supplemented, restated, otherwise modified, refinanced, renewed
or otherwise replaced from time to time; provided that any
such amendment, waiver, supplement, restatement, modification, refinancing,
renewal or replacement is not in violation of Section 4.01.
“Senior Indebtedness Event of
Default” means a “Default” or an “Event of Default” as each such term is
defined in any Senior Indebtedness.
“Subsequent Term”
means the period beginning on the day after the Maturity Date and ending on the
date that is the
earlier of (i) 90 days after the maturity date of the Senior Indebtedness as in
effect on the date hereof (it being understood that if the Senior Indebtedness
is composed of more than one facility and/or tranche, the maturity date referred
to in this clause (i) shall be the latest maturity date) and (ii) six years and
six months from the date hereof.
“Subordinated
Indebtedness” means all obligations of the Borrower now or hereafter
existing under, or with respect to, this Note, whether for principal, interest
(including, without limitation, interest accrued after the filing of a petition
initiating any proceeding referred to in Section 3.02, whether or not such
interest accrues after the filing of such petition or is an allowed claim in
such proceeding), fees, reimbursements, damages, expenses or
otherwise.
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ARTICLE
II
TERMS OF
PAYMENT
SECTION
2.01. Payment of
Principal. On
the Maturity Date, the Borrower shall pay to the Seller Representative, acting
for and on behalf of the Holders, the total balance of the principal amount of
this Note then outstanding, together with all interest accrued thereon, along
with all other amounts then due and payable by the Borrower under this
Note.
SECTION
2.02. Optional
Prepayments. The
Borrower may, on any Business Day, prepay the then outstanding principal amount
of this Note in whole or in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid.
SECTION
2.03. Interest. (a) Interest
shall accrue on the outstanding principal amount of this Note at a rate per
annum equal to (i) 5% (five percent) during the Initial Term, (ii) the greater
of (A) 8% (eight percent) and (B) the applicable interest rate under the Senior
Indebtedness as in effect on the third anniversary of the Closing Date (as if
Senior Indebtedness remained outstanding as of such date), during the Subsequent
Term and (iii) the greater of (A) 10% (ten percent) and (B) 2% (two percent)
plus the
applicable interest rate under the Senior Indebtedness as in effect on the fifth
anniversary of the Closing Date (as if Senior Indebtedness remained outstanding
as of such date), during the Extended Term. Interest shall be payable
in arrears at the end of each calendar quarter, and on the date on which the
principal amount of this Note is paid in full.
(b) Anything
in this Note to the contrary notwithstanding, any overdue amount of principal,
interest, fees or other amounts payable under this Note shall bear interest,
payable on demand, at a rate equal to the applicable interest rate under the
Senior Indebtedness as in effect on the fifth anniversary of the Closing Date
(as if Senior Indebtedness remained outstanding as of such date).
SECTION 2.04. Payments and
Computations. (a) The
Borrower shall make each payment hereunder to the Seller Representative, acting
for and on behalf of the Holders, not later than at 11:00 A.M. (New York City
time) on the day when due. All payments (including prepayments)
hereunder shall be in United States dollars and shall be made by wire transfer
of immediately available funds to such account as shall be designated by the
Seller Representative at least two Business Days prior to such payment
date.
(b) All
computations of interest shall be made on the basis of a year of 365 or 366
days, as the case may be, for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest is
payable.
(c) Whenever
any payment hereunder shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest.
SECTION
2.05. Events of
Default. The
Borrower shall be in default under this Note upon the occurrence of any of the
following events (each individually, an “Event of
Default”):
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(a) the
Borrower shall fail to pay (i) any principal of this Note as and when required
to be paid or (ii) any interest or any other amount due under this Note within
three Business Days of the date due; provided that in the
event the Borrower is prohibited from paying any such amount under the terms of
the Senior Indebtedness, then any failure to pay any such amount as a direct
result thereof, which failure occurs on or prior to the expiration of the
Subsequent Term, shall not constitute an Event of Default hereunder; and provided, further, that the
Borrower shall have paid, at the time of such failure, the maximum amount then
due and payable hereunder that is permitted to be paid hereunder in accordance
with the terms of the Senior Indebtedness;
(b) (i)
the Borrower or any Subsidiary (as defined in the Credit Agreement) (other than
an Immaterial Subsidiary (as defined in the Credit Agreement)) shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets; or
(ii) there shall be commenced against the Borrower or any Subsidiary (other than
an Immaterial Subsidiary) any case, proceeding or other action of a nature
referred to in clause (i) above that (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed or
undischarged for a period of 60 days; or (iii) there shall be commenced against
the Borrower or any Subsidiary (other than an Immaterial Subsidiary) any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Borrower or any Subsidiary (other than
an Immaterial Subsidiary) shall authorize any action set forth in clause (i),
(ii), or (iii) above; or (v) the Borrower or any Subsidiary (other than an
Immaterial Subsidiary) shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or (vi) or
the Borrower or any Subsidiary (other than an Immaterial Subsidiary) shall make
a general assignment for the benefit of its creditors;
(c) one
or more final monetary judgments or decrees shall be entered against the
Borrower or any Subsidiary (to the extent not paid or covered by insurance as to
which the relevant insurance company has not denied coverage) of $5,000,000 or
more, which such judgments or decrees are not paid, discharged, satisfied,
annulled, rescinded, vacated, discharged, stayed or bonded pending appeal for a
period of 60 days;
(d) a
Change of Control;
(e) the
Senior Indebtedness then outstanding shall have been declared to be due and
payable pursuant to a Senior Indebtedness Event of Default;
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(f) the
Borrower or any Subsidiary shall (i) default in making any payment of any
principal of any Indebtedness (as defined in the Credit Agreement) (including
any Guarantee Obligation (as defined in the Credit Agreement), and including,
for purposes of this Section 2.05(f), obligations in respect of Swap Agreements
(as defined in the Credit Agreement), but excluding the Loans (as defined in the
Credit Agreement)) on the scheduled or original due date with respect thereto;
(ii) default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that
a default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (f) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the aggregate outstanding principal
amount of which is $5,000,000 or more; or
(g) any
provision of this Note shall for any reason cease to be valid and binding on or
enforceable against the Borrower, or the Borrower shall deny any further
obligation or liability under this Note.
SECTION 2.06. Consequences of Events of
Default. If
any Event of Default shall occur and be continuing then, and in any such event,
the Seller Representative may, by notice to the Borrower, declare this Note, all
interest thereon and all other amounts payable under this Note to be forthwith
due and payable, whereupon this Note, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower.
ARTICLE
III
SUBORDINATION
SECTION
3.01. Subordination. The
Seller Representative and the Holders agree that this Note is, and shall be,
subordinate to the Senior Indebtedness to the extent and in the manner set forth
in this Article III. The Borrower agrees that it will not make any
payment of any of the Subordinated Indebtedness, or take any other action, in
contravention of the provisions of this Article III.
SECTION
3.02. Events of
Subordination. Prior
to the expiration of the Subsequent Term, in the event:
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(a) of
any dissolution, winding up, liquidation, arrangement, reorganization,
adjustment, protection, relief or composition of the Borrower or its debts,
whether voluntary or involuntary, in any bankruptcy, insolvency, arrangement,
reorganization, receivership, relief or other similar case or proceeding under
any federal or state bankruptcy or similar law or upon an assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
the Borrower or otherwise, all Senior Indebtedness shall first be paid in full
before the Seller Representative, acting for and on behalf of the Holders, shall
be entitled to receive any payment of all or any of the Subordinated
Indebtedness, and any payment or distribution of any kind (whether in cash,
property or securities) that otherwise would be payable or deliverable upon or
with respect to the Subordinated Indebtedness in any such case, proceeding,
assignment, marshalling or otherwise (including any payment that may be payable
by reason of any other indebtedness of the Borrower being subordinated to
payment of the Subordinated Indebtedness) shall be paid or delivered directly to
the Agent for the account of the Lenders for application (in the case of cash)
to, or as collateral (in the case of non-cash property or securities) for, the
payment or prepayment of the Senior Indebtedness until all Senior Indebtedness
shall have been paid in full;
(b) that
any Senior Indebtedness Event of Default constituting a payment default shall
have occurred and be continuing or any judicial proceeding shall be pending
with respect to any Senior Indebtedness Event of Default, then no payment
(including any payment that may be payable by reason of any other indebtedness
of the Borrower being subordinated to payment of the Subordinated Indebtedness)
shall be made by or on behalf of the Borrower for or on account of any
Subordinated Indebtedness, and the Seller Representative, acting for and on
behalf of the Holders, shall not take or receive from the Borrower or any other
Person, directly or indirectly, in cash or other property or by set-off or in
any other manner, including, without limitation, from or by way of collateral,
payment of all or any of the Subordinated Indebtedness; and
(c) that
any Senior Indebtedness Event of Default (other than a payment default) or event
which with the giving of notice or the lapse of time, or both, would become a
Senior Indebtedness Event of Default shall have occurred and be continuing and
the Agent gives written notice thereof to the Borrower, then no payment
(including any payment that may be payable by reason of any other indebtedness
of the Borrower being subordinated to payment of the Subordinated Indebtedness)
shall be made by or on behalf of the Borrower for or on account of any
Subordinated Indebtedness, and the Seller Representative, acting for and on
behalf of the Holders, shall not take or receive from the Borrower, directly or
indirectly, in cash or other property or by set off or in any other manner,
including, without limitation, from or by way of collateral, payment of all or
any of the Subordinated Indebtedness, during a period (the “Payment Blockage
Period”) commencing on the date of receipt of such notice and ending on
the earlier of (i) the date such Senior Indebtedness Event of Default or event
shall have been cured or waived in writing and (ii) the date 180 days from the
date of receipt of such notice. Any number of such notices may be
given by the Agent; provided, however, that during
any 360 day period the aggregate number of days during which a Payment Blockage
Period shall be in effect shall not exceed 180 days and there shall be a period
of at least 180 consecutive days in each 360 day period when no Payment Blockage
Period is in effect.
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SECTION
3.03. In
Furtherance of Subordination. If
any event referred to in 3.02 shall have occurred,
(a) the
Agent is hereby irrevocably authorized and empowered (in its own name or in the
name of the Holders of the Subordinated Indebtedness or otherwise), but shall
have no obligation, to demand, xxx for, collect and receive every payment or
distribution in respect of the Subordinated Indebtedness and give acquittance
therefor and to file claims and proofs of claim and take such other action
(including, without limitation, voting the Subordinated Indebtedness or
enforcing any security interest or other lien securing payment of the
Subordinated Indebtedness) as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of the Agent or the
Lenders hereunder;
(b) the
Seller Representative, acting for and on behalf of the Holders, shall duly and
promptly take such action as the Agent may request (i) to collect the
Subordinated Indebtedness for the account of the Lenders and to file appropriate
claims or proofs of claim in respect of the Subordinated Indebtedness,
(ii) to execute and deliver to the Agent such powers of attorney,
assignments, or other instruments as the Agent may request in order to enable
the Agent to enforce any and all claims with respect to, and any security
interests and other liens securing payment of, the Subordinated Indebtedness,
and (iii) to collect and receive any and all payments or distributions that
may be payable or deliverable upon or with respect to the Subordinated
Indebtedness;
(c) all
payments or distributions upon or with respect to the Subordinated Indebtedness
that are received by the Seller Representative, acting for or on behalf of any
Holder, contrary to the provisions of this Article III shall be received in
trust for the benefit of the Lenders, shall be segregated from other funds and
property held by the Seller Representative for or on behalf of such Holder and
shall be forthwith paid over to the Agent for the account of the Lenders in the
same form as so received (with any necessary indorsement) to be applied (in the
case of cash) to, or held as collateral (in the case of non-cash property or
securities) for, the payment or prepayment of the Senior Indebtedness in
accordance with the terms of the Senior Indebtedness; and
(d) the
Agent is hereby authorized to demand specific performance of the provisions of
this Article III, whether or not the Borrower shall have complied with any of
the provisions hereof applicable to it, at any time when the Seller
Representative, acting for or on behalf of any Holder, shall have failed to
comply with any of the provisions of this Article III applicable to
it. The Seller Representative, acting for and on behalf of the
Holders, hereby irrevocably waives any defense based on the adequacy of a remedy
at law, which might be asserted as a bar to such remedy of specific
performance.
SECTION
3.04. No
Commencement of any Proceeding. So
long as payments or distributions for or on account of the Subordinated
Indebtedness are not permitted pursuant to Section 3.02, neither the Holders nor
the Seller Representative, acting for and on behalf of the Holders, shall take
any Enforcement Action prior to the expiration of the Subsequent
Term.
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SECTION
3.05. Waiver;
Remedies.
(a) The
Seller Representative, acting for and on behalf of the Holders, hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Senior Indebtedness and this Article III and any requirement that the
Agent or any Lender protect, secure, perfect or insure any security interest or
lien or any property subject thereto or exhaust any right or take any action
against Borrower or any other Person or any collateral.
(b) No
failure on the part of the Agent or any Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
Law. The Seller Representative, acting for and on behalf of the
Holders, agrees not to initiate, prosecute or participate in any claim, action
or other proceeding challenging the enforceability, validity, perfection or
priority of the Senior Indebtedness or any liens and security interests securing
the Senior Indebtedness.
SECTION
3.06. Continuing Agreement;
Assignment under the Senior Indebtedness. The
provisions of this Article III constitute a continuing agreement and shall
(a) remain in full force and effect until the expiration of the Subsequent
Term, (b) be binding upon the Holders and the Seller Representative, acting
for and on behalf of the Holders, the Borrower and their respective successors
and assigns, and (c) inure to the benefit of, and be enforceable by, the
Agent, the Lenders and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing
clause (c), Agent and any Lender may assign or otherwise transfer all or
any portion of its rights and obligations under any Senior Indebtedness
(including, without limitation, all or any portion of any Note (as defined in
any Senior Indebtedness) to be held by it) to any other Person, and such other
Person shall thereupon become vested with all the rights in respect thereof
granted to Agent or such Lender, as the case may be, herein or otherwise,
subject, however, to the relevant assignment provisions of the Senior
Indebtedness.
ARTICLE
IV
ADDITIONAL
COVENANTS
SECTION
4.01. Amendments to the Senior
Indebtedness. No
amendment, waiver, supplement, restatement, modification, refinancing, renewal
or replacement of any Senior Indebtedness shall prohibit the payment of
principal hereunder after the expiration of the Subsequent Term without the
prior written consent of the Seller Representative. Notwithstanding
anything to the contrary, the Senior Indebtedness
will allow the payment of periodic interest in respect of this Note so long as
no Senior Indebtedness Event of Default has occurred.
SECTION
4.02. Limitation on
Layering. Without
the prior written consent of the Seller Representative, the Borrower shall not,
and shall not permit any of its subsidiaries to, create, incur, assume or suffer
to exist any Indebtedness that is subordinated to the Borrower’s obligations
under the Senior Indebtedness but senior to the Borrower’s obligations
hereunder.
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ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Amendments,
Etc. No
amendment, modification, supplement or waiver of any provision of this Note, and
no consent to any departure by the Borrower herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Seller
Representative and the Borrower, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION
5.02. Expenses. The
Borrower hereby agrees upon demand to pay to the Seller Representative the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel, which the Seller Representative may incur in connection
with the exercise or enforcement of any of the rights of the Seller
Representative and the Holders hereunder.
SECTION
5.03. Waivers;
Remedies. (a) No
failure on the part of the Seller Representative or any Holder to exercise, and
no delay in exercising, any right hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by Law.
(b) The
Borrower hereby waives presentment for payment, demand, notice of dishonor and
protest of this Note.
SECTION
5.04. Assignment. Neither
this Note, nor any rights or obligations hereunder, shall be assigned by the
Borrower without the prior written consent of the Seller
Representative. Neither this Note, nor any rights or obligations
hereunder, shall be assigned by the Holders without the prior written consent of
the Borrower. Any assignment or transfer in contradiction of this
Section 5.04 shall be null and void.
SECTION
5.05. Severability. If
any term or other provision of this Note is invalid, illegal or incapable of
being enforced by any Law or public policy, all other terms and provisions of
this Note shall nevertheless remain in full force and effect for so long as the
economic or legal substance of the transactions contemplated by this Note is not
affected in any manner materially adverse to either the Borrower, the Seller
Representative or any Holder. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
Borrower and the Seller Representative, acting for and on behalf of the Holders,
shall negotiate in good faith to modify this Note so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Note are consummated as
originally contemplated to the greatest extent possible.
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SECTION
5.06. Governing
Law. This
Note shall be governed by, and construed in accordance with, the Laws of the
State of New York. All Actions (whether in contract or in tort) based
on, arising out of or relating to this Note or the negotiation, execution or
performance of this Note, shall be heard and determined exclusively in any New
York federal court sitting in the Borough of Manhattan of The City of New York;
provided, however, that if such
federal court does not have jurisdiction over such Action, such Action shall be
heard and determined exclusively in any New York state court sitting in the
Borough of Manhattan of The City of New York. Consistent with the
preceding sentence, each of the Borrower, the Seller Representative and the
Holders hereby (a) submits to the exclusive jurisdiction of any federal or
state court sitting in the Borough of Manhattan of The City of New York for the
purpose of any Action arising out of or relating to this Note and
(b) irrevocably waives, and agrees not to assert by way of motion, defense,
or otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this Note
or the transactions contemplated by this Note may not be enforced in or by any
of the above-named courts.
SECTION
5.07. WAIVER OF JURY
TRIAL. EACH
OF THE BORROWER, THE SELLER REPRESENTATIVE AND THE HOLDERS HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR LIABILITY DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS NOTE OR THE TRANSACTIONS CONTEMPLATED BY
THIS NOTE.
[Remainder of Page Intentionally Left
Blank; Signature Follows]
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IN
WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above
written.
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XXX.XXX
GROUP, INC.
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By:
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/s/ Xxxxx X.
Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Chief Executive Officer
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