NOTE
$4,725,000.00 Dallas, Texas January 31, 2000
FOR VALUE RECEIVED, the undersigned, PRIME REFRACTIVE MANAGEMENT,
L.L.C., a Delaware limited liability company ("Maker"), hereby promises to pay
to the order of BANK OF AMERICA, N.A. ("Payee"), at the offices of Bank of
America, N.A., as Administrative Agent (together with any successor as provided
in the Agreement, hereinbelow defined, the "Administrative Agent") at 000 Xxxx
Xxxxxx, Xxxxxx, Xxxxx 00000, on April 21, 2003, in lawful money of the United
States of America, the principal sum of FOUR MILLION SEVEN HUNDRED TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($4,725,000.00), or so much thereof as may be
advanced and outstanding hereunder together with the interest on the outstanding
principal balance from day to day remaining, as herein specified.
This Note has been executed and delivered by Maker pursuant to the
terms of that certain Loan Agreement of even date herewith among Maker, Payee,
the Administrative Agent, BankBoston, N.A., as Documentation Agent, and each of
the other Lenders which is or may become a party thereto or any successor or
assignee thereof (as the same may be amended, supplemented or modified from time
to time, the "Agreement") and is one of the Notes described therein. Capitalized
terms used and not otherwise defined herein shall have the same meanings as set
forth in the Agreement.
Reference is hereby made to the Agreement for provisions affecting this
Note, including, without limitation, provisions regarding payments, prepayments
(optional and mandatory), Events of Default and the Administrative Agent's and
Xxxxx's right as a result of the occurrence thereof.
The outstanding principal balance hereof shall bear interest prior to
maturity at a varying rate per annum which shall from day to day be equal to the
lesser of (a) the Maximum Rate, or (b) the Applicable Rate in effect from day to
day, each such change in the rate of interest charged hereunder to become
effective, without notice to Maker, on the effective date of each change in the
Applicable Rate or the Maximum Rate, as the case may be; provided, however, if
at any time the Applicable Rate shall exceed the Maximum Rate, thereby causing
the interest rate hereon to be limited to the Maximum Rate, then any subsequent
reduction in the Applicable Rate shall not reduce the rate of interest hereon
below the Maximum Rate until the total amount of interest accrued hereon equals
the amount of interest which would have accrued hereon if the Applicable Rate
had at all times been in effect. Accrued and unpaid interest on this Note shall
be due and payable on each Payment Date and on the Termination Date. All
past-due principal and interest shall bear interest as the Default Rate.
3
Regardless of any provision contained in any Loan Document, neither
Administrative Agent nor any Lender shall ever be entitled to contract for,
charge, take, reserve, receive, or apply, as interest on all or any part of the
Obligations, any amount in excess of the Maximum Rate, and, if Lenders ever do
so, then such excess shall be deemed a partial prepayment of principal and
treated hereunder as such and any remaining excess shall be refunded to Maker.
In determining if the interest paid or payable exceeds the Maximum Rate, Maker
and Lenders shall, to the maximum extent permitted under applicable Law, (a)
treat all Advances as but a single extension of credit (and Lenders and Maker
agree that such is the case and that provision herein for multiple Advances is
for convenience only), (b) characterize any nonprincipal payment as an expense,
fee, or premium rather than as interest, (c) exclude voluntary prepayments and
the effects thereof, and (d) amortize, prorate, allocate, and spread the total
amount of interest throughout the entire contemplated term of the Obligations.
However, if the Obligations are paid and performed in full prior to the end of
the full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Maximum Amount, Lenders shall refund
such excess, and, in such event, Lenders shall not, to the extent permitted by
Law, be subject to any penalties provided by any laws for contracting for,
charging, taking, reserving, or receiving interest in excess of the Maximum
Amount. The "Maximum Rate" or the "Maximum Amount," mean the "weekly ceiling"
from time to time in effect under Texas Finance Code ss. 303.305, as amended.
Upon the occurrence of an Event of Default, the Administrative Agent
may (and if directed by the Required Lenders, shall) declare the entire unpaid
principal of and accrued interest on this Note immediately due and payable
without notice, demand or presentment, all of which are hereby waived, and upon
such declaration, the same shall become and shall be immediately due and
payable, and the Administrative Agent shall have the right to foreclose or
otherwise enforce all Liens or security interests securing payment hereof, or
any part hereof, and offset against this Note any sum or sums owed by the
Administrative Agent, Payee or the holder hereof to Maker. Failure of the
Administrative Agent, Payee or the holder hereof to exercise this option shall
not constitute a waiver of the right to exercise the same upon the occurrence of
a subsequent Event of Default.
If the Administrative Agent, Xxxxx or the holder hereof expends any
effort in any attempt to enforce payment of all or any part or installment of
any sum due the holder hereunder, or if this Note is placed in the hands of an
attorney for collection, or if it is collected through any legal proceedings,
Maker agrees to pay all costs, expenses, and fees incurred by the Administrative
Agent, or the holder, including reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the
laws of the State of Texas and the applicable laws of the United States of
America.
Except as provided in the Agreement, Maker and each surety, guarantor,
endorser, and other party ever liable for payment of any sums of money payable
on this Note jointly and severally waive notice, presentment, demand for
payment, protest, notice of protest and non-payment or dishonor, notice of
acceleration, notice of intent to accelerate, notice of intent to demand,
diligence in collecting, grace, and all other formalities of any kind, and
consent to all extensions without notice for any period or periods of time and
partial payments, before or after maturity, and any impairment of any Collateral
securing this Note, all without prejudice to the Administrative Agent, Payee or
the holder. The Administrative Agent, Xxxxx and the holder shall similarly have
the right to deal in any way, at any time, with one or more of the foregoing
parties without notice to any other party, and to grant any such party any
extensions of time for payment of any of said indebtedness, or to release or
substitute part or all of the Collateral securing this Note, or to grant any
other indulgences or forbearances whatsoever, without notice to any other party
and without in any way affecting the personal liability of any party hereunder.
Maker hereby authorizes the Administrative Agent, Xxxxx and the holder
hereof to endorse on the Schedule attached to this Note or any continuation
thereof or to record in their internal records all Advances made to Maker
hereunder and all payments made on account of the principal thereof, which
endorsements or recordings shall be prima facie evidence as to the outstanding
principal amount of this Note; provided, however, any failure by the
Administrative Agent, Payee or the holder hereof to make any such endorsement or
recording shall not limit or otherwise affect the obligations of Maker under the
Agreement or this Note.
PRIME REFRACTIVE MANAGEMENT, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Vice President-Treasurer
