1
EXHIBIT 10.7
THIS DEMAND NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH
CONDITIONS SPECIFIED HEREIN.
HMTF BRIDGE VIATEL, LLC
Demand Note
Dallas, Texas
FOR VALUE RECEIVED, the undersigned (the "Company") , a limited
liability company organized and existing under the laws of the State of
Delaware, hereby promises to pay to the order of HMEU Viatel Qualified Fund,
LLC, or registered assigns, the principal sum of seventy five million, eight
hundred and one thousand and forty four Dollars ($75,801,044.00) not later than
three business days after written demand for payment is delivered by the holder
hereof to the Company at its principal office (which is located at 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, on the date of this Note) , with simple
interest at a rate of 7% per annum. Interest will be paid at the time of payment
of the related principal or at the time this Note is otherwise surrendered by
the holder hereof for cancellation.
Payments of principal and interest accrued on the principal being paid
to the date of payment are to be made at the home office of the Company, or such
other place as the holder of this Note shall have specified in writing to the
Company, in lawful money of the United States of America.
This Note and the other Demand Notes being issued and dated the date
hereof are herein called the "Notes."
The Company represents and warrants that:
(i) it is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
power and authority to own and lease its property and to conduct its
business as presently conducted or contemplated; the Company is duly
qualified to transact business as a foreign corporation in each
jurisdiction in which the conduct of its business as presently conducted or
its ownership or leasing of property makes such qualification necessary;
(ii) the execution and delivery by the Company of the Notes have been
duly authorized by all the necessary corporate action and the Notes
constitute the valid and binding agreements of the Company enforceable in
accordance with their terms except to the extent that enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or other similar
laws of general application relating to or affecting the enforcement of
creditors' rights generally from time to time in effect; and
(iii) the execution and delivery of the Notes does not and will not
contravene, or constitute a default under, any law or regulation, the
limited liability company agreement of the Company or any agreement,
judgement, injunction, order, decree or instrument binding upon the
Company, or result in the creation or imposition of any lien, claim or
encumbrance on any asset of the Company.
If any of the following events shall occur:
2
(i) any representation or warranty made by the Company in this Note
shall be false in any material respect on the date as of which made or the
Company shall violate any covenant or agreement made by it in this Note;
(ii) the Company shall make an assignment for the benefit of creditors
or admit in writing its inability to pay off its debts as they become due;
(iii) an order, judgement or decree shall be entered adjudicating the
Company bankrupt or insolvent;
(iv) the Company shall petition or apply to any tribunal for the
appointment of a trustee, receiver or liquidator of the Company or of any
substantial part of its assets, or commence any proceedings relating to the
Company under and bankruptcy, reorganization arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect;
(v) any such petition or application shall be filed, or any such
proceeding shall be commenced, against the Company and the Company by any
act shall indicate its approval thereof, consent thereto or acquiescence
therein, or any order, judgement or decree shall be entered appointing any
such trustee, receiver or liquidator, or approving the petition in any such
proceedings, and any such order, judgement or decree shall remain unstayed
and in effect for more than 60 days; or
(vi) any order, judgement or decree shall be entered in any proceeding
against the Company decreeing the dissolution of the Company;
then, notwithstanding any provision herein to the contrary, this Note shall
thereupon be and become forthwith due and payable without demand or other notice
of any kind by the holder hereof or any other person.
The Company promises to pay the following costs, expenses and
attorneys' fees paid or incurred by the holder of this Note, or adjudged by the
court:
(a) reasonable costs of collection, costs and expenses and attorneys'
fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed; and
(b) costs of suit and such sums as the court may adjudge as attorneys'
fees in any action to enforce payment of this Note or any part of it.
Upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or his attorney duly authorized in writing, and
upon satisfaction of the Company that such transfer is exempt from registration
under the Securities Act of 1933, a new note for a like principal amount will be
issued to, and registered in the name of, the transferee. The Company may treat
the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Company shall
not be affected by any notice to the contrary.
No alteration, amendment or waiver of any provision of this Note, made
by agreement of the holder hereof and any other person or party, shall
3
constitute a waiver of any term hereof, or otherwise release or discharge the
liability of the Company under this Note.
This Note may not be modified, terminated or discharged nor shall any
waiver hereunder be effective unless in writing signed by the party against whom
the same is asserted.
The provisions of this Note shall be construed and interpreted, and in
all rights and obligations hereunder determined, in accordance with the laws of
the State of New York.
HMTF BRIDGE RHY, LLC
By: /s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
4
THIS DEMAND NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH
CONDITIONS SPECIFIED HEREIN.
HMTF BRIDGE VIATEL, LLC
Demand Note
Dallas, Texas
FOR VALUE RECEIVED, the undersigned (the "Company") , a limited
liability company organized and existing under the laws of the State of
Delaware, hereby promises to pay to the order of HMEU Viatel Private Fund, LLC,
or registered assigns, the principal sum of nine hundred and six thousand, three
hundred and sixty one Dollars ($906,361.00) not later than three business days
after written demand for payment is delivered by the holder hereof to the
Company at its principal office (which is located at 000 Xxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxx, Xxxxx, on the date of this Note) , with simple interest at a rate
of 7.5% per annum. Interest will be paid at the time of payment of the related
principal or at the time this Note is otherwise surrendered by the holder hereof
for cancellation.
Payments of principal and interest accrued on the principal being paid
to the date of payment are to be made at the home office of the Company, or such
other place as the holder of this Note shall have specified in writing to the
Company, in lawful money of the United States of America.
This Note and the other Demand Notes being issued and dated the date
hereof are herein called the "Notes."
The Company represents and warrants that:
(i) it is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
power and authority to own and lease its property and to conduct its
business as presently conducted or contemplated; the Company is duly
qualified to transact business as a foreign corporation in each
jurisdiction in which the conduct of its business as presently conducted or
its ownership or leasing of property makes such qualification necessary;
(ii) the execution and delivery by the Company of the Notes have been
duly authorized by all the necessary corporate action and the Notes
constitute the valid and binding agreements of the Company enforceable in
accordance with their terms except to the extent that enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or other similar
laws of general application relating to or affecting the enforcement of
creditors' rights generally from time to time in effect; and
(iii) the execution and delivery of the Notes does not and will not
contravene, or constitute a default under, any law or regulation, the
limited liability company agreement of the Company or any agreement,
judgement, injunction, order, decree or instrument binding upon the
Company, or result in the creation or imposition of any lien, claim or
encumbrance on any asset of the Company.
If any of the following events shall occur:
5
(i) any representation or warranty made by the Company in this Note
shall be false in any material respect on the date as of which made or the
Company shall violate any covenant or agreement made by it in this Note;
(ii) the Company shall make an assignment for the benefit of creditors
or admit in writing its inability to pay off its debts as they become due;
(iii) an order, judgement or decree shall be entered adjudicating the
Company bankrupt or insolvent;
(iv) the Company shall petition or apply to any tribunal for the
appointment of a trustee, receiver or liquidator of the Company or of any
substantial part of its assets, or commence any proceedings relating to the
Company under and bankruptcy, reorganization arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect;
(v) any such petition or application shall be filed, or any such
proceeding shall be commenced, against the Company and the Company by any
act shall indicate its approval thereof, consent thereto or acquiescence
therein, or any order, judgement or decree shall be entered appointing any
such trustee, receiver or liquidator, or approving the petition in any such
proceedings, and any such order, judgement or decree shall remain unstayed
and in effect for more than 60 days; or
(vi) any order, judgement or decree shall be entered in any proceeding
against the Company decreeing the dissolution of the Company;
then, notwithstanding any provision herein to the contrary, this Note shall
thereupon be and become forthwith due and payable without demand or other notice
of any kind by the holder hereof or any other person.
The Company promises to pay the following costs, expenses and
attorneys' fees paid or incurred by the holder of this Note, or adjudged by the
court:
(a) reasonable costs of collection, costs and expenses and attorneys'
fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed; and
(b) costs of suit and such sums as the court may adjudge as attorneys'
fees in any action to enforce payment of this Note or any part of it.
Upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or his attorney duly authorized in writing, and
upon satisfaction of the Company that such transfer is exempt from registration
under the Securities Act of 1933, a new note for a like principal amount will be
issued to, and registered in the name of, the transferee. The Company may treat
the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Company shall
not be affected by any notice to the contrary.
No alteration, amendment or waiver of any provision of this Note, made
by agreement of the holder hereof and any other person or party, shall
6
constitute a waiver of any term hereof, or otherwise release or discharge the
liability of the Company under this Note.
This Note may not be modified, terminated or discharged nor shall any
waiver hereunder be effective unless in writing signed by the party against whom
the same is asserted.
The provisions of this Note shall be construed and interpreted, and in
all rights and obligations hereunder determined, in accordance with the laws of
the State of New York.
HMTF BRIDGE RHY, LLC
By: /s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
7
THIS DEMAND NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH
CONDITIONS SPECIFIED HEREIN.
HMTF BRIDGE VIATEL, LLC
Demand Note
Dallas, Texas
FOR VALUE RECEIVED, the undersigned (the "Company") , a limited
liability company organized and existing under the laws of the State of
Delaware, hereby promises to pay to the order of HM Viatel PG Europe, LLC, or
registered assigns, the principal sum of five million,six hundred thousand, two
hundred and four Dollars ($5,600,204.00) not later than three business days
after written demand for payment is delivered by the holder hereof to the
Company at its principal office (which is located at 000 Xxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxx, Xxxxx, on the date of this Note) , with simple interest at a rate
of 7.5% per annum. Interest will be paid at the time of payment of the related
principal or at the time this Note is otherwise surrendered by the holder hereof
for cancellation.
Payments of principal and interest accrued on the principal being paid
to the date of payment are to be made at the home office of the Company, or such
other place as the holder of this Note shall have specified in writing to the
Company, in lawful money of the United States of America.
This Note and the other Demand Notes being issued and dated the date
hereof are herein called the "Notes." The Company represents and warrants that:
(i) it is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
power and authority to own and lease its property and to conduct its
business as presently conducted or contemplated; the Company is duly
qualified to transact business as a foreign corporation in each
jurisdiction in which the conduct of its business as presently conducted or
its ownership or leasing of property makes such qualification necessary;
(ii) the execution and delivery by the Company of the Notes have been
duly authorized by all the necessary corporate action and the Notes
constitute the valid and binding agreements of the Company enforceable in
accordance with their terms except to the extent that enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or other similar
laws of general application relating to or affecting the enforcement of
creditors' rights generally from time to time in effect; and
(iii) the execution and delivery of the Notes does not and will not
contravene, or constitute a default under, any law or regulation, the
limited liability company agreement of the Company or any agreement,
judgement, injunction, order, decree or instrument binding upon the
Company, or result in the creation or imposition of any lien, claim or
encumbrance on any asset of the Company.
If any of the following events shall occur:
8
(i) any representation or warranty made by the Company in this Note
shall be false in any material respect on the date as of which made or the
Company shall violate any covenant or agreement made by it in this Note;
(ii) the Company shall make an assignment for the benefit of creditors
or admit in writing its inability to pay off its debts as they become due;
(iii) an order, judgement or decree shall be entered adjudicating the
Company bankrupt or insolvent;
(iv) the Company shall petition or apply to any tribunal for the
appointment of a trustee, receiver or liquidator of the Company or of any
substantial part of its assets, or commence any proceedings relating to the
Company under and bankruptcy, reorganization arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect;
(v) any such petition or application shall be filed, or any such
proceeding shall be commenced, against the Company and the Company by any
act shall indicate its approval thereof, consent thereto or acquiescence
therein, or any order, judgement or decree shall be entered appointing any
such trustee, receiver or liquidator, or approving the petition in any such
proceedings, and any such order, judgement or decree shall remain unstayed
and in effect for more than 60 days; or
(vi) any order, judgement or decree shall be entered in any proceeding
against the Company decreeing the dissolution of the Company;
then, notwithstanding any provision herein to the contrary, this Note shall
thereupon be and become forthwith due and payable without demand or other notice
of any kind by the holder hereof or any other person.
The Company promises to pay the following costs, expenses and
attorneys' fees paid or incurred by the holder of this Note, or adjudged by the
court:
(a) reasonable costs of collection, costs and expenses and attorneys'
fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed; and
(b) costs of suit and such sums as the court may adjudge as attorneys'
fees in any action to enforce payment of this Note or any part of it.
Upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or his attorney duly authorized in writing, and
upon satisfaction of the Company that such transfer is exempt from registration
under the Securities Act of 1933, a new note for a like principal amount will be
issued to, and registered in the name of, the transferee. The Company may treat
the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Company shall
not be affected by any notice to the contrary.
No alteration, amendment or waiver of any provision of this Note, made
by agreement of the holder hereof and any other person or party, shall
9
constitute a waiver of any term hereof, or otherwise release or discharge the
liability of the Company under this Note.
This Note may not be modified, terminated or discharged nor shall any
waiver hereunder be effective unless in writing signed by the party against whom
the same is asserted.
The provisions of this Note shall be construed and interpreted, and in
all rights and obligations hereunder determined, in accordance with the laws of
the State of New York.
HMTF BRIDGE RHY, LLC
By: /s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
10
THIS DEMAND NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH
CONDITIONS SPECIFIED HEREIN.
HMTF BRIDGE VIATEL, LLC
Demand Note
Dallas, Texas
FOR VALUE RECEIVED, the undersigned (the "Company") , a limited
liability company organized and existing under the laws of the State of
Delaware, hereby promises to pay to the order of HMEU Viatel I-SBS Coinvestors,
LLC, or registered assigns, the principal sum of nine hundred and seventy three
thousand, four hundred and twenty five Dollars ($973,425.00) not later than
three business days after written demand for payment is delivered by the holder
hereof to the Company at its principal office (which is located at 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, on the date of this Note) , with simple
interest at a rate of 7.5% per annum. Interest will be paid at the time of
payment of the related principal or at the time this Note is otherwise
surrendered by the holder hereof for cancellation.
Payments of principal and interest accrued on the principal being paid
to the date of payment are to be made at the home office of the Company, or such
other place as the holder of this Note shall have specified in writing to the
Company, in lawful money of the United States of America.
This Note and the other Demand Notes being issued and dated the date
hereof are herein called the "Notes."
The Company represents and warrants that:
(i) it is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
power and authority to own and lease its property and to conduct its
business as presently conducted or contemplated; the Company is duly
qualified to transact business as a foreign corporation in each
jurisdiction in which the conduct of its business as presently conducted or
its ownership or leasing of property makes such qualification necessary;
(ii) the execution and delivery by the Company of the Notes have been
duly authorized by all the necessary corporate action and the Notes
constitute the valid and binding agreements of the Company enforceable in
accordance with their terms except to the extent that enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or other similar
laws of general application relating to or affecting the enforcement of
creditors' rights generally from time to time in effect; and
(iii) the execution and delivery of the Notes does not and will not
contravene, or constitute a default under, any law or regulation, the
limited liability company agreement of the Company or any agreement,
judgement, injunction, order, decree or instrument binding upon the
Company, or result in the creation or imposition of any lien, claim or
encumbrance on any asset of the Company.
11
If any of the following events shall occur:
(i) any representation or warranty made by the Company in this Note
shall be false in any material respect on the date as of which made or the
Company shall violate any covenant or agreement made by it in this Note;
(ii) the Company shall make an assignment for the benefit of creditors
or admit in writing its inability to pay off its debts as they become due;
(iii) an order, judgement or decree shall be entered adjudicating the
Company bankrupt or insolvent;
(iv) the Company shall petition or apply to any tribunal for the
appointment of a trustee, receiver or liquidator of the Company or of any
substantial part of its assets, or commence any proceedings relating to the
Company under and bankruptcy, reorganization arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect;
(v) any such petition or application shall be filed, or any such
proceeding shall be commenced, against the Company and the Company by any
act shall indicate its approval thereof, consent thereto or acquiescence
therein, or any order, judgement or decree shall be entered appointing any
such trustee, receiver or liquidator, or approving the petition in any such
proceedings, and any such order, judgement or decree shall remain unstayed
and in effect for more than 60 days; or
(vi) any order, judgement or decree shall be entered in any proceeding
against the Company decreeing the dissolution of the Company;
then, notwithstanding any provision herein to the contrary, this Note shall
thereupon be and become forthwith due and payable without demand or other notice
of any kind by the holder hereof or any other person.
The Company promises to pay the following costs, expenses and attorneys' fees
paid or incurred by the holder of this Note, or adjudged by the court:
(a) reasonable costs of collection, costs and expenses and attorneys'
fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed; and
(b) costs of suit and such sums as the court may adjudge as attorneys'
fees in any action to enforce payment of this Note or any part of it.
Upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or his attorney duly authorized in writing, and
upon satisfaction of the Company that such transfer is exempt from registration
under the Securities Act of 1933, a new note for a like principal amount will be
issued to, and registered in the name of, the transferee. The Company may treat
the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Company shall
not be affected by any notice to the contrary.
12
No alteration, amendment or waiver of any provision of this Note, made
by agreement of the holder hereof and any other person or party, shall
constitute a waiver of any term hereof, or otherwise release or discharge the
liability of the Company under this Note.
This Note may not be modified, terminated or discharged nor shall any
waiver hereunder be effective unless in writing signed by the party against whom
the same is asserted.
The provisions of this Note shall be construed and interpreted, and in
all rights and obligations hereunder determined, in accordance with the laws of
the State of New York.
HMTF BRIDGE RHY, LLC
By: /s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
13
THIS DEMAND NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH
CONDITIONS SPECIFIED HEREIN.
HMTF BRIDGE VIATEL, LLC
Demand Note
Dallas, Texas
FOR VALUE RECEIVED, the undersigned (the "Company") , a limited
liability company organized and existing under the laws of the State of
Delaware, hereby promises to pay to the order of HMEU Viatel I-EQ Coinvestors,
LLC, or registered assigns, the principal sum of nine hundred and seventy three
thousand, four hundred and twenty five Dollars ($973,425.00) not later than
three business days after written demand for payment is delivered by the holder
hereof to the Company at its principal office (which is located at 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, on the date of this Note) , with simple
interest at a rate of 7.5% per annum. Interest will be paid at the time of
payment of the related principal or at the time this Note is otherwise
surrendered by the holder hereof for cancellation.
Payments of principal and interest accrued on the principal being paid
to the date of payment are to be made at the home office of the Company, or such
other place as the holder of this Note shall have specified in writing to the
Company, in lawful money of the United States of America.
This Note and the other Demand Notes being issued and dated the date
hereof are herein called the "Notes." The Company represents and warrants that:
(i) it is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
power and authority to own and lease its property and to conduct its
business as presently conducted or contemplated; the Company is duly
qualified to transact business as a foreign corporation in each
jurisdiction in which the conduct of its business as presently conducted or
its ownership or leasing of property makes such qualification necessary;
(ii) the execution and delivery by the Company of the Notes have been
duly authorized by all the necessary corporate action and the Notes
constitute the valid and binding agreements of the Company enforceable in
accordance with their terms except to the extent that enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or other similar
laws of general application relating to or affecting the enforcement of
creditors' rights generally from time to time in effect; and
(iii) the execution and delivery of the Notes does not and will not
contravene, or constitute a default under, any law or regulation, the
limited liability company agreement of the Company or any agreement,
judgement, injunction, order, decree or instrument binding upon the
Company, or result in the creation or imposition of any lien, claim or
encumbrance on any asset of the Company.
14
If any of the following events shall occur:
(i) any representation or warranty made by the Company in this Note
shall be false in any material respect on the date as of which made or the
Company shall violate any covenant or agreement made by it in this Note;
(ii) the Company shall make an assignment for the benefit of creditors
or admit in writing its inability to pay off its debts as they become due;
(iii) an order, judgement or decree shall be entered adjudicating the
Company bankrupt or insolvent;
(iv) the Company shall petition or apply to any tribunal for the
appointment of a trustee, receiver or liquidator of the Company or of any
substantial part of its assets, or commence any proceedings relating to the
Company under and bankruptcy, reorganization arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect;
(v) any such petition or application shall be filed, or any such
proceeding shall be commenced, against the Company and the Company by any
act shall indicate its approval thereof, consent thereto or acquiescence
therein, or any order, judgement or decree shall be entered appointing any
such trustee, receiver or liquidator, or approving the petition in any such
proceedings, and any such order, judgement or decree shall remain unstayed
and in effect for more than 60 days; or
(vi) any order, judgement or decree shall be entered in any proceeding
against the Company decreeing the dissolution of the Company;
then, notwithstanding any provision herein to the contrary, this Note shall
thereupon be and become forthwith due and payable without demand or other notice
of any kind by the holder hereof or any other person.
The Company promises to pay the following costs, expenses and
attorneys' fees paid or incurred by the holder of this Note, or adjudged by the
court:
(a) reasonable costs of collection, costs and expenses and attorneys'
fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed; and
(b) costs of suit and such sums as the court may adjudge as attorneys'
fees in any action to enforce payment of this Note or any part of it.
Upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or his attorney duly authorized in writing, and
upon satisfaction of the Company that such transfer is exempt from registration
under the Securities Act of 1933, a new note for a like principal amount will be
issued to, and registered in the name of, the transferee. The Company may treat
the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Company shall
not be affected by any notice to the contrary.
15
No alteration, amendment or waiver of any provision of this Note, made
by agreement of the holder hereof and any other person or party, shall
constitute a waiver of any term hereof, or otherwise release or discharge the
liability of the Company under this Note.
This Note may not be modified, terminated or discharged nor shall any
waiver hereunder be effective unless in writing signed by the party against whom
the same is asserted.
The provisions of this Note shall be construed and interpreted, and in
all rights and obligations hereunder determined, in accordance with the laws of
the State of New York.
HMTF BRIDGE RHY, LLC
By: /s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
