EXHIBIT 4.9
EXECUTION COPY
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NOTE
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO
AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS
BANKVEST CAPITAL CORP.
10.101% SUBORDINATED PROMISSORY NOTE
DUE FEBRUARY 27, 2005
$15,000,000 New York, New York
February 28, 1997
FOR VALUE RECEIVED, the undersigned, BANKVEST CAPITAL CORP., a
Massachusetts corporation (the "BORROWER"), hereby promises to pay to the order
of WHITNEY SUBORDINATED DEBT FUND, L.P. or its registered assigns (the
"HOLDER"), the principal sum of FIFTEEN MILLION ($15,000,000) on February 27,
2005 (the "MATURITY DATE"), with interest thereon from time to time as provided
herein.
1. PURCHASE AGREEMENT. This Subordinated Promissory Note (the
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"NOTE") is issued by the Borrower pursuant to the Securities Purchase Agreement
(the "PURCHASE AGREEMENT"), dated as of February 28, 1997, by and between the
Borrower and Whitney Subordinated Debt Fund, L.P. ("WSDF"), and the Holder is
entitled to the benefits of this Note and the Purchase Agreement, as it relates
to the Note, and may enforce the agreements of the Borrower contained herein and
therein and exercise the remedies provided for hereby and thereby or otherwise
available to it in
respect hereto and thereto. Capitalized terms used herein without definition are
used herein with the meanings ascribed to such terms in the Purchase Agreement.
2. INTEREST. The Borrower promises to pay interest on the principal
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amount of this Note from time to time outstanding at the rate of 10.101% per
annum. The Borrower shall pay accrued interest quarterly on each March 31, June
30, September 30 and December 31 of each year or, if any such date shall not be
a Business Day, on the next succeeding Business Day to occur after such date
(each date upon which interest shall be so payable, an "INTEREST PAYMENT DATE"),
beginning on March 31, 1997. Interest on this Note shall be paid by wire
transfer of immediately available funds to an account at a bank designated by
the Holder. Interest on this Note shall accrue from the date of issuance until
repayment of the principal and payment of all accrued interest in full. Interest
shall accrue and be computed on the basis of a 360-day year of twelve 30-day
months. Notwithstanding the foregoing provisions of this Section 2, but subject
to applicable law, upon and during the occurrence of an Event of Default (as
hereinafter defined), this Note shall bear interest, from the date of the
occurrence of such Event of Default until such Event of Default is cured or
waived, payable on demand in immediately available funds, at a rate equal to the
rate of interest otherwise in effect pursuant to the first sentence of this
Section 2 plus 2% per annum. Subject to applicable law, any interest that shall
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accrue on overdue interest on this Note as provided in the preceding sentence
which shall not have been paid in full on or before the next Interest Payment
Date to occur after the Interest Payment Date on which the overdue interest
became due and payable shall itself be deemed to be overdue interest on this
Note to which the preceding sentence shall apply.
3. MANDATORY PREPAYMENT.
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(a) Public Offerings. Upon the consummation of all Public
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Offerings (as hereinafter defined) while this Note remains outstanding, the
Borrower shall apply the aggregate proceeds therefrom in excess of the sum of
(i) reasonable brokerage commissions or underwriting fees and other reasonable
fees and expenses (including, without limitation, reasonable fees, charges and
disbursements of counsel and accountants and reasonable fees and expenses of
investment bankers) relating to such Public Offering and (ii) $15,000,000 (such
excess being the "Net Proceeds"), such that the first $5,000,000 of Net Proceeds
and 50% of all other Net Proceeds shall prepay the outstanding principal amount
of this Note (together with interest accrued thereon), such payment to be made
within 5 Business Days after receipt by either the Borrower or any of its
Subsidiaries of the proceeds of each such Public Offering, except that
prepayment of the greater of the first $5,000,000 or the amount required to be
prepaid hereunder from the initial Public Offering shall be paid within 90 days
after receipt of the proceeds of such initial Public Offering. For the purposes
hereof, "PUBLIC OFFERING" means the sale by either the Borrower or any of its
Subsidiaries of its capital stock pursuant to a registration statement on Form
S-1 or other Form under the Securities Act.
(b) Change of Control. Upon a Change of Control (as hereinafter
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defined), the Borrower shall prepay the outstanding principal amount of this
Note (together with interest accrued thereon), within 5 Business Days after the
occurrence of such Change of Control.
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For the purposes hereof, "CHANGE OF CONTROL" means (i) any transaction or series
of transactions in which one or more Persons, other than the current
shareholders of the Company, become the beneficial owners of an aggregate of 30%
or more of the then outstanding capital stock of the Company, provided that
shares of capital stock acquired upon exercise of Management Options or Other
Warrants shall be excluded for purposes of this clause and shares sold by the
Company in a Public offering shall be disregarded for purposes of this clause,
(ii) Paul S. Gass shall sell all or substantially all of his equity ownership in
the Borrower to any Person other than his spouse and his descendants (whether
natural or adopted) and any trust solely for the benefit of Gass and/or his
spouse and/or such descendants, (iii) the sale of all or substantially all of
the Borrower's assets, (iv) the liquidation of the Borrower, (v) the election of
any person to the Board of Directors who was not placed in nomination for that
office as contemplated in the Stockholders' Agreement, (vi) Paul S. Gass shall
cease to serve as the President and Chief Executive Officer of the Borrower, and
(vii) except if permitted or not prohibited by the Purchase Agreement, the
combination of the Borrower with another company, as a result of which the
shareholders of Borrower hold less than 70% of the total of all voting shares
outstanding or Borrower's directors constitute less than a majority of the Board
of Directors of the combined entity.
(c) Notice. The Borrower shall give written notice to the Holder
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of any mandatory prepayment pursuant to this Section 3 at least 5 Business Days
prior to the date of such prepayment. Such notice shall be given in the manner
specified in Section 11.2 of the Purchase Agreement.
4. OPTIONAL PREPAYMENT.
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(a) Upon notice given to the Holder as provided in Section 4(b),
the Borrower, at its option, may prepay all or any portion of this Note at any
time, by paying an amount equal to the outstanding principal amount of this
Note, or the portion of this Note so noticed for prepayment, together with
interest accrued and unpaid thereon to the date fixed for prepayment, together
with costs and expenses (including, without limitation, reasonable fees, charges
and disbursements of counsel), if any, associated with such prepayment, without
penalty or premium; provided, however, each prepayment of less than the full
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outstanding principal balance of the Note shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof, and provided, further, that
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unless this Note shall be paid in full, the aggregate principal balance of this
Note outstanding at any time shall be at least $5,000,000.
(b) The Borrower may give written notice of prepayment of this
Note or any portion thereof not less than 10 nor more than 60 days prior to the
date fixed for such prepayment. Such notice of prepayment shall be given in the
manner specified in Section 11.2 of the Purchase Agreement. Upon notice of
prepayment being given by the Borrower, the Borrower covenants and agrees that
it will prepay, on the date therein fixed for prepayment, the outstanding
principal amount of this Note or the portion hereof so noticed for prepayment,
together with interest accrued and unpaid thereon to the date fixed for such
prepayment, together with the costs and expenses referred to in Section 4(a).
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(c) All optional prepayments under this Section 4 shall include
payment of accrued interest on the principal amount so prepaid and shall be
applied first to all costs, expenses and indemnities payable under the Purchase
Agreement, then to payment of default interest, if any, then to payment of
accrued interest, and thereafter to principal.
5. AMENDMENT. Amendments and modifications of this Note may be made
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only in the manner provided in Section 11.4 of the Purchase Agreement.
6. DEFAULTS AND REMEDIES.
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(a) Events of Default. An "Event of Default" shall occur if:
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(i) the Borrower shall default in the payment of the
principal of this Note, or any installment thereof, when and as the same shall
become due and payable, whether at maturity or at a date required or fixed for
prepayment or by acceleration or otherwise; or
(ii) the Borrower shall default in the payment of any
installment of interest on this Note according to its terms, when and as the
same shall become due and payable and such default shall continue for a period
of 5 days following notice thereof; or
(iii) the Borrower shall default in the due observance or
performance of any covenant to be observed or performed pursuant to Sections
8.1, 8.2(a), 8.3(a), 8.11 or Article 9 of the Purchase Agreement and such
default shall continue for a period of 15 days;
(iv) the Borrower or any of its Subsidiaries shall default
in the due observance or performance of any other covenant, condition or
agreement on the part of the Borrower or any of its Subsidiaries to be observed
or performed pursuant to the terms hereof or pursuant to the terms of the
Purchase Agreement or any of the Transaction Documents (other than those
referred to in clauses (i), (ii) or (iii) of this Section 6(a)), and such
default shall continue for 30 days after the earlier of (A) the date the
Borrower is required to give notice thereof to the Holder (whether or not such
notice is actually given) or (B) the date of written notice thereof, specifying
such default and, if such default is capable of being remedied, requesting that
the same be remedied, shall have been given to the Borrower by the Holder; or
(v) any representation, warranty or certification made by
or on behalf of the Borrower or its Subsidiaries in the Purchase Agreement, this
Note, the Transaction Documents or in any certificate or other document
delivered pursuant hereto or thereto shall have been incorrect in any material
respect when made; or
(vi) any event or condition shall occur that results in
(A) the acceleration of the maturity of any Indebtedness of the Borrower or any
of its Subsidiaries, or (B)
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a default at the maturity of any Indebtedness of the Borrower, in either case in
a principal amount aggregating $250,000 or more; or
(vii) any uninsured damage to or loss, theft or destruction
of any assets of the Borrower or any of its Subsidiaries shall occur that is in
excess of $500,000; or
(viii) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(a) relief in respect of the Borrower or any of its Subsidiaries, or of a
substantial part of their property or assets, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law, (b) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any of its Subsidiaries, or for a substantial part of their
property or assets, or (c) the winding up or liquidation of either the Borrower
or any of its Subsidiaries; and such proceeding or petition shall continue
undismissed for 60 days, or an order or decree approving or ordering any of the
foregoing shall be entered; or
(ix) the Borrower or any of its Subsidiaries shall (a)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or similar law,
(b) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
paragraph (viii) of this Section 6(a), (c) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any of its Subsidiaries, or for a
substantial part of their property or assets, (d) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (e)
make a general assignment for the benefit of creditors, (f) become unable, admit
in writing its inability or fail generally to pay its debts as they become due
or (g) take any action for the purpose of effecting any of the foregoing; or
(x) one or more judgments for the payment of money in an
aggregate amount in excess of $250,000 (to the extent not covered by insurance)
shall be rendered against the Borrower or any of its Subsidiaries and the same
shall remain undischarged for a period of 30 days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of the Borrower or any of its
Subsidiaries to enforce any such judgment; or
(xi) the holder or holders of Class A Preferred Stock
shall exercise their right to elect a director or directors to the Company's
Board of Directors upon the occurrence of an Event of Non-Compliance of the type
described in Sections 9(A)(ii), 9(A)(iii), 9(a)(vi) or 9(A)(viii) of the
Company's Certificate of Designation setting forth the preferences, voting
powers, qualifications and special or relative rights or privileges of the
Company's Class A and Class B Preferred Stock.
(b) Acceleration.
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(i) If an Event of Default occurs under Section
6(a)(viii) or (ix), then the outstanding principal of and all accrued interest
on this Note shall automatically become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
(ii) If any other Event of Default occurs and is
continuing, the Holder, by written notice to the Borrower, may declare the
principal of and accrued interest on this Note to be immediately due and
payable. Upon such declaration, such principal and interest shall become
immediately due and payable.
(iii) The Holder may rescind an acceleration and its
consequences if all existing Events of Default have been cured or waived, except
nonpayment of principal or interest that has become due solely because of the
acceleration, and if the rescission would not conflict with any judgment or
decree. Any notice of rescission shall be given in the manner specified in
Section 11.2 of the Purchase Agreement.
7. SUBORDINATION. The "Subordinated Indebtedness", as defined below
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in this Section 7, shall at all times be wholly subordinate and junior in right
of payment to all Senior Indebtedness to the extent and in the manner provided
in this Section 7.
(a) Definitions. As used in this Section 7, the following terms
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shall have the following meanings:
"INDEBTEDNESS" shall have the meaning assigned to that term in the
Purchase Agreement.
"SENIOR INDEBTEDNESS" shall have the meaning assigned to that term in
the Purchase Agreement.
"SUBORDINATED INDEBTEDNESS" shall mean (i) the principal of and
interest on this Note; and (ii) any other obligations of the Borrower arising
out of or in connection with the Purchase Agreement or this Note.
(b) Subordination Upon Certain Events. Upon the occurrence of
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any Event of Default with respect to the Borrower (but not its Subsidiaries)
under Sections 6(a)(viii) or (ix) of this Note:
(i) Upon any payment or distribution of assets of the
Borrower to creditors of such Borrower, holders of Senior Indebtedness shall be
entitled to receive indefeasible payment in full of all obligations with respect
to the Senior Indebtedness before the Holder shall be entitled to receive any
distribution in respect of the Subordinated Indebtedness.
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(ii) Until all obligations with respect to Senior
Indebtedness are paid in full, any distribution to which the Holder would be
entitled but for this Section 7 shall be made to the holders of Senior
Indebtedness, as their interests may appear, except that the Holder may,
pursuant to a plan of reorganization under Chapter 11 of the Bankruptcy Code of
1978, as amended, or any similar provision of any successor legislation thereto,
receive securities that are subordinate to the Senior Indebtedness to at least
the same extent as this Note if pursuant to such plan the distributions to the
holders of the Senior Indebtedness in the form of cash, securities or other
property, by set-off or otherwise, provide for payment of the full amount of the
allowed claim of the holders of the Senior Indebtedness.
(iii) For purposes of this Section 7, a distribution may
consist of cash, securities or other property, by set-off or otherwise.
(iv) Notwithstanding the foregoing provisions of Section
7(b), if payment or delivery by the Borrower of cash, securities or other
property to the Holder is authorized by an order or decree giving effect, and
stating in such order or decree that effect is given, to the subordination of
this Note to the Senior Indebtedness, and made by a court of competent
jurisdiction in a proceeding under any applicable bankruptcy or reorganization
law, payment or delivery by such Borrower of such cash, securities or other
property shall be made to the Holder in accordance with such order or decree.
(c) Payments and Distributions Received. If the Holder shall
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have received any payment from or distribution of assets of the Borrower in
respect of the Subordinated Indebtedness in contravention of the terms of this
Section 7 before all Senior Indebtedness is paid in full, then and in such event
such payment or distribution shall be received and held in trust for and shall
be promptly paid over or delivered to the holders of Senior Indebtedness to the
extent necessary to pay all such Senior Indebtedness in full.
(d) Proofs of Claim. If, while any Senior Indebtedness is
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outstanding, any Event of Default under Section 6(a)(viii) or (ix) of this Note
occurs with respect to the Borrower (but not its Subsidiaries), the Holder shall
duly and promptly take such action as any holder of Senior Indebtedness may
reasonably request to collect any payment with respect to this Note for the
account of the holders of the Senior Indebtedness and to file appropriate claims
or proofs of claim in respect of this Note. Upon the failure of the Holder to
take any such action, each holder of Senior Indebtedness is hereby irrevocably
authorized and empowered (in its own name or otherwise), but shall have no
obligation, to demand, sue for, collect and receive every payment or
distribution referred to in respect of this Note and to file claims and proofs
of claim and take such other action as it may deem necessary or advisable for
the exercise or enforcement of any of the rights or interests of the holder with
respect to this Note.
(e) Subrogation. After all amounts payable under or in respect
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of Senior Indebtedness are paid in full, the Holder shall be subrogated to the
rights of holders of Senior Indebtedness to receive payments or distributions
applicable to Senior Indebtedness to the extent that
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distributions otherwise payable to the Holder have been applied to the payment
of Senior Indebtedness. A distribution made under this Section 7 to a holder of
Senior Indebtedness which otherwise would have been made to the Holder is not,
as between the Borrower and the Holder, a payment by the Borrower on Senior
Indebtedness.
(f) Relative Rights. This Section defines the relative rights of the
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Holder and the holders of Senior Indebtedness. Nothing in this Section shall:
(1) impair, as between the Borrower and the Holder, the obligation of the
Borrower, which is absolute and unconditional, to pay principal of and interest
(including default interest) on this Note in accordance with its terms; (2)
affect the relative rights of the Holder and creditors of the Borrower other
than holders of Senior Indebtedness or (3) prevent the Holder from exercising
its available remedies upon a default or Event of Default, subject to the
rights, if any, under this Section 7 of holders of Senior Indebtedness.
(g) Subordination May Not Be Impaired by the Borrower. No right of
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any holder of any Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by this Note shall be impaired by any failure to act by
the Borrower or such holder of Senior Indebtedness or by the failure of the
Borrower or such holder to comply with this Note. The provisions of this
Section 7 shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Senior Indebtedness is rescinded or
must otherwise be returned by any holder of Senior Indebtedness as a result of
the insolvency, bankruptcy or reorganization of the Borrower or any of its
Subsidiaries or otherwise, all as though such payment had not been made.
(h) Payments. A payment with respect to principal of or interest on
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the Subordinated Indebtedness shall include, without limitation, payment of
principal of, and interest on this Note, any depositing of funds for the
defeasance of the Subordinated Indebtedness, any sinking fund and any payment on
account of mandatory prepayment or optional prepayment provisions.
(i) Section Not to Prevent Events of Default. The failure to make a
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payment on account of principal of or interest on or other amounts constituting
Subordinated Indebtedness by reason of any provision of this Section 7 shall not
be construed as preventing the occurrence of an Event of Default under Section
6.
(j) Subordination Not Impaired: Benefit of Subordination. The Holder
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agrees and consents that without notice to or assent by such Holder, and without
affecting the liabilities and obligations of the Borrower and the rights and
benefits of the holders of the Senior Indebtedness set forth in this Section 7:
(i) The obligations and liabilities of the Borrower and any
other party or parties for or upon the Senior Indebtedness may, from time to
time, be increased, renewed, refinanced, extended, modified, amended, restated,
compromised, supplemented, terminated, waived or released, except as prohibited
by Sections 9.3 and 9.4 of the Purchase Agreement;
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(ii) The holders of Senior Indebtedness, and any
representative or representatives acting on behalf thereof, may exercise or
refrain from exercising any right, remedy or power granted by or in connection
with any agreements relating to the Senior Indebtedness; and
(iii) Any balance or balances of funds with any holder of
Senior Indebtedness at any time outstanding to the credit of the Borrower may,
from time to time, in whole or in part, be applied, surrendered or released;
all as the holders of the Senior Indebtedness, and any representative or
representatives acting on behalf thereof, may deem advisable, and all without
impairing, abridging, diminishing, releasing or affecting the subordination of
the Subordinated Indebtedness to the Senior Indebtedness provided for herein.
(k) Modification of Section 7. The provisions of this Section 7
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are for the benefit of the holders from time to time of Senior Indebtedness and,
so long as any Senior Indebtedness remains unpaid, may not be modified,
rescinded or canceled in whole or in part without the prior written consent
thereto of all holders of Senior Indebtedness.
(l) Miscellaneous.
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(i) To the extent permitted by applicable law, the Holder
and the Borrower hereby waive (1) notice of acceptance hereof by the holders of
the Senior Indebtedness, and (2) all diligence in the collection or protection
of or realization upon the Senior Indebtedness.
(ii) The Borrower and the Holder hereby expressly agree
that the holders of Senior Indebtedness may enforce any and all rights derived
herein by suit, either in equity or law, for specific performance of any
agreement contained in this Section 7 or for judgment at law and any other
relief whatsoever appropriate to such action or procedure.
(iii) The Holder acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the issuance of this
Agreement, and each holder of Senior Indebtedness shall be deemed conclusively
to have relied upon such subordination provisions in acquiring and continuing to
hold such Senior Indebtedness.
8. USE OF PROCEEDS. The Borrower shall use the proceeds from
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the Indebtedness evidenced by this Note for the payment of fees and expenses in
connection with the transactions contemplated in the Transaction Documents and
for general corporate purposes.
9. SUITS FOR ENFORCEMENT.
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(a) Subject to Section 7, upon the occurrence of any one or more
Events of Default, the Holder of this Note may proceed to protect and enforce
its rights hereunder by suit in equity, action at law or by other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in the Purchase Agreement or this Note or in aid of the exercise of
any power granted in the Purchase Agreement or this Note, or may proceed to
enforce the payment of this Note, or to enforce any other legal or equitable
right of the Holder of this Note.
(b) In case of any default under this Note, the Borrower will
pay to the Holder such amounts as shall be sufficient to cover the costs and
expenses of such Holder due to such default, as provided in Article 7 of the
Purchase Agreement.
10. REMEDIES CUMULATIVE. No remedy herein conferred upon the Holder
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is intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
11. REMEDIES NOT WAIVED. No course of dealing between the Borrower
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and the Holder or any delay on the part of the Holder in exercising any rights
hereunder shall operate as a waiver of any right.
12. TRANSFER.
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(a) The term "HOLDER" as used herein shall also include any
transferee of this Note whose name has been recorded by the Borrower in the Note
Register. Each transferee of this Note acknowledges that this Note has not been
registered under the Securities Act, and may be transferred only pursuant to an
effective registration under the Securities Act or pursuant to an applicable
exemption from the registration requirements of the Securities Act.
(b) The Borrower shall maintain a register (the "NOTE REGISTER")
in its principal offices for the purpose of registering the Note and any
transfer thereof, which register shall reflect and identify, at all times, the
ownership of any interest in the Note. Upon the issuance of this Note, the
Borrower shall record the name of the initial purchaser of this Note in the Note
Register as the first Holder. Upon surrender for registration of transfer or
exchange of this Note at the principal offices of the Borrower, the Borrower
shall, at its expense, execute and deliver one or more new Notes of like tenor,
each in a principal amount not less than one-third of the then principal amount
outstanding hereunder, registered in the name of the Holder or a transferee or
transferees. If this Note is divided as provided in this paragraph 12, then all
references herein to this "Note" shall include the Notes issued as a result of
such division. Every Note surrendered for registration of transfer or exchange
shall be duly endorsed, or be accompanied by written instrument of transfer duly
executed by the Holder of such Note or such holder's attorney duly authorized in
writing.
13. REPLACEMENT OF NOTE. On receipt by the Borrower of an affidavit
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of an authorized representative of the Holder stating the circumstances of the
loss, theft, destruction or
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mutilation of this Note (and in the case of any such mutilation, on surrender
and cancellation of such Note), the Borrower, at its expense, will promptly
execute and deliver, in lieu thereof, a new Note of like tenor. If required by
the Borrower, such Holder must provide an indemnity bond or other indemnity
sufficient in the judgment of the Borrower to protect the Borrower from any loss
which it may suffer if a lost, stolen or destroyed Note is replaced.
14. COVENANTS BIND SUCCESSORS AND ASSIGNS. All the covenants,
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stipulations, promises and agreements in this Note contained by or on behalf of
the Borrower shall bind its successors and assigns, whether so expressed or not.
15. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
16. HEADINGS. The headings in this Note are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
BANKVEST CAPITAL CORP.
By: ____________________________________
Name:
Title:
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