<PAGE> 1
EXHIBIT 10.8
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 RHY, 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 HM4 Rhythms Qualified Fund,
LLC, or registered assigns, the principal sum of one hundred and nineteen
million, three hundred and ninety six thousand, five hundred and sixty two
Dollars ($119,396,562.00) 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 200 Crescent Court, Suite 1600, Dallas,
Texas, on the date of this Note) , with simple interest at a rate of 8.25% 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.
<PAGE> 2
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.
<PAGE> 3
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/ DAVID W. KNICKEL
-----------------------------
Name: David W. Knickel
---------------------------
Title: Vice President
--------------------------
<PAGE> 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 RHY, 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 HM4 Rhythms Private Fund, LLC,
or registered assigns, the principal sum of eight hundred and forty five
thousand, eight hundred and forty eight Dollars ($845,848.00) 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 200 Crescent
Court, Suite 1600, Dallas, Texas, on the date of this Note), with simple
interest at a rate of 8.25% 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:
<PAGE> 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
<PAGE> 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/ DAVID W. KNICKEL
------------------------------
Name: David W. Knickel
---------------------------
Title: Vice President
--------------------------
<PAGE> 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 RHY, 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 PG-IV Rhythms, LLC, or
registered assigns, the principal sum of six million, three hundred and fifty
six thousand, four hundred and eighty six Dollars ($6,356,486.00) 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 200
Crescent Court, Suite 1600, Dallas, Texas, on the date of this Note) , with
simple interest at a rate of 8.25% 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:
<PAGE> 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
<PAGE> 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/ DAVID W. KNICKEL
------------------------------
Name: David W. Knickel
---------------------------
Title: Vice President
--------------------------
<PAGE> 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 RHY, 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 4-SBS Rhythms Coinvestors,
LLC, or registered assigns, the principal sum of two million, eight hundred and
fifty nine thousand, one hundred and seventy eight Dollars ($2,859,178.00) 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
200 Crescent Court, Suite 1600, Dallas, Texas, on the date of this Note) , with
simple interest at a rate of 8.25% 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.
<PAGE> 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.
<PAGE> 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/ DAVID W. KNICKEL
------------------------------
Name: David W. Knickel
---------------------------
Title: Vice President
--------------------------
<PAGE> 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 RHY, 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 4-EQ Rhythms Coinvestors,
LLC, or registered assigns, the principal sum of one million, seven hundred and
fifty four thousand, four hundred and forty one Dollars ($1,754,441.00) 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
200 Crescent Court, Suite 1600, Dallas, Texas, on the date of this Note) , with
simple interest at a rate of 8.25% 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:
<PAGE> 14
(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
<PAGE> 15
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/ DAVID W. KNICKEL
------------------------------
Name: David W. Knickel
---------------------------
Title: Vice President
--------------------------
