NOTE
NOTE
PAYMENT
OF THIS INSTRUMENT SHALL, TO THE EXTENT SET FORTH IN INTERCREDITOR AGREEMENT
DATED SEPTEMBER 2, 2008 BY AND AMONG ABC FUNDING, INC., AS BORROWER, CIT CAPITAL
USA INC., IN ITS CAPACITY AS ADMINISTRATIVE AGENT FOR THE SENIOR INDEBTEDNESS,
CIT CAPITAL USA INC., IN ITS CAPACITY AS ADMINISTRATIVE AGENT FOR THE SECOND
LIEN OBLIGATIONS AND OTHER PARTIES THERETO (THE “INTERCREDITOR AGREEMENT”), BE
SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN FULL OF ALL
SENIOR INDEBTEDNESS, THE PROVISIONS OF SUCH INTERCREDITOR AGREEMENT BEING
INCORPORATED HEREIN AND BY THIS REFERENCE BEING MADE A PART HEREOF.
THIS NOTE
IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES. THE ISSUE PRICE IS $21,391,312.00. THE TOTAL AMOUNT OF ORIGINAL
ISSUE DISCOUNT IS $608,688.00 THE ISSUE DATE IS SEPTEMBER 2, 2008. FOR
INFORMATION ON THE YIELD TO MATURITY OF THE NOTE, PLEASE CONTACT XXXXXX X. XXXX,
0000 XX 000 XXXX, XXXXX 000, XXXXXXX, XXXXX 00000, 281-315-8865).
$22,000,000.00
September 2, 2008
FOR VALUE
RECEIVED, ABC Funding, Inc., a Nevada corporation (the “Borrower”) hereby
promises to pay CIT Capital USA Inc. or its registered assigns (the “Lender”), at the
principal office of CIT Capital USA
Inc. (the “Administrative
Agent”), at 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, the principal sum of Twenty-two Million Dollars
$22,000,000.00 (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Lender to the Borrower under the Loan
Agreement, as hereinafter defined), in lawful money of the United States of
America and in immediately available funds, on the dates and in the principal
amounts provided in the Loan Agreement, and to pay interest on the unpaid
principal amount of each such Loan, at such office, in like money and funds, for
the period commencing on the date of such Loan until such Loan shall be paid in
full, at the rates per annum and on the dates provided in the Loan
Agreement.
The date,
amount, Type, interest rate, Interest Period and maturity of the Loan made by
the Lender to the Borrower, and each payment made on account of the principal
thereof, shall be recorded by the Administrative Agent on behalf of the Borrower
on its books. Notwithstanding anything else in this Note to the
contrary, the right to the principal of, and stated interest on, this Note may
be transferred only if the transfer is recorded in the
Register. Prior to registration of the transfer, the Borrower and its
agent shall be entitled to treat the registered holder of the Note (as recorded
in the Register) as the owner in fact thereof for all purposes.
This Note
is one of the Notes referred to in the Second Lien Term Loan Agreement dated as
of September 2, 2008 among the
Borrower, the Administrative Agent, and the other agents and lenders signatory
thereto (including the Lender), and evidences Loans made by the Lender
thereunder (such Loan Agreement as the same may be amended, supplemented or
restated from time to time, the “Loan
Agreement”). Capitalized terms used in this Note have the
respective meanings assigned to them in the Loan Agreement.
This Note
is issued pursuant to, and is subject to the terms and conditions set forth in,
the Loan Agreement and is entitled to the benefits provided for in the Loan
Agreement and the other Loan Documents. The Loan Agreement provides
for the acceleration of the maturity of this Note upon the occurrence of certain
events, for prepayments of Loans upon the terms and conditions specified therein
and other provisions relevant to this Note.
THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS.
[Signature
Page Follows]
By: /s/ Xxxx
X.
Xxxxx
Xxxx X. Xxxxx
Chief Financial Officer
