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(B)
TIME OF ESSENCE.
TIME IS OF THE ESSENCE WITH RESPECT TO THE
TERMS, COVENANTS, AND CONDITIONS CONTAINED HEREIN.
(C)
ENTIRE AGREEMENT.
THIS NOTE, INCLUDING ANY OTHER AGREEMENTS,
EXHIBITS, AND SCHEDULES TO BE ENTERED INTO IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY AND SPECIFICALLY REFERENCED IN THIS NOTE, CONSTITUTES AND
EMBODIES THE ENTIRE UNDERSTANDING AND AGREEMENT OF THE PARTIES HERETO RELATING
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES HERETO, WHETHER WRITTEN OR ORAL.
(D)
CONSTRUCTION.
EVERY COVENANT, TERM, AND PROVISION OF THIS
NOTE SHALL BE CONSTRUED SIMPLY ACCORDING TO ITS FAIR MEANING AND NOT STRICTLY
FOR OR AGAINST ANY
5
PARTY.
EVERY EXHIBIT, SCHEDULE, ATTACHMENT, OR OTHER APPENDIX ATTACHED TO THIS
NOTE AND REFERRED TO HEREIN SHALL CONSTITUTE A PART OF THIS NOTE AND IS HEREBY
INCORPORATED HEREIN BY REFERENCE.
ANY REFERENCE TO ANY FEDERAL, STATE, LOCAL,
OR FOREIGN STATUE OR LAW SHALL BE DEEMED ALSO TO REFER TO ALL RULES AND
REGULATIONS PROMULGATED THEREUNDER, UNLESS THE CONTEXT REQUIRES OTHERWISE.
UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE, (I) PLURAL AND SINGULAR NUMBERS
WILL EACH BE CONSTRUED TO INCLUDE THE OTHER; (II) THE MASCULINE, FEMININE, AND
NEUTER GENDERS WILL EACH BE CONSTRUED TO INCLUDE THE OTHERS; (III) "SHALL,"
"WILL," "MUST," "AGREE," AND "COVENANTS" ARE EACH MANDATORY; (IV) "MAY" IS
PERMISSIVE; (V) "OR" IS NOT EXCLUSIVE; (VI) "INCLUDES" AND "INCLUDING" ARE NOT
LIMITING; AND (VII) "KNOWLEDGE" WILL MEAN KNOWLEDGE AFTER DUE INQUIRY.
(E)
AMENDMENTS AND WAIVERS.
ANY TERM OF THIS NOTE MAY BE AMENDED
AND THE OBSERVANCE OF ANY TERM OF THIS NOTE MAY BE WAIVED (EITHER GENERALLY OR
IN A PARTICULAR INSTANCE AND EITHER RETROACTIVELY OR PROSPECTIVELY), BUT ONLY
WITH THE WRITTEN CONSENT OF THE PARTY OR PARTIES TO BE BOUND THEREBY.
NO DELAY
IN THE EXERCISE OF ANY RIGHT OR REMEDY UNDER THIS NOTE SHALL CONSTITUTE A WAIVER
THEREOF AND THE WAIVER BY ANY PARTY OF ANY RIGHT OR REMEDY UNDER THIS NOTE ON
ANY ONE OCCASION SHALL NOT BE DEEMED A WAIVER OF SUCH RIGHT OR REMEDY ON ANY
SUBSEQUENT OCCASION.
(F)
ASSIGNMENT.
THIS NOTE SHALL NOT BE TRANSFERRED OR ASSIGNED,
WHETHER BY OPERATION OF LAW OR OTHERWISE, WITHOUT THE PRIOR WRITTEN CONSENT OF
MAKER, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD IF THE TRANSFEREE OR
ASSIGNEE THEREOF IS AN AFFILIATE (AS DEFINED IN THE PURCHASE AGREEMENT) OF PAYEE
AND AGREES IN WRITING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS NOTE.
(G)
NO THIRD PARTY BENEFICIARIES.
EXCEPT AS EXPRESSLY PROVIDED
HEREIN, NOTHING IN THIS NOTE, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY
PARTY OTHER THAN THE PARTIES HERETO, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS,
ANY RIGHTS, REMEDIES, OBLIGATIONS, OR LIABILITIES UNDER OR BY REASON OF THIS
NOTE.
(H)
HEADINGS.
THE TITLES AND SUBTITLES USED IN THIS NOTE ARE USED
FOR CONVENIENCE ONLY AND SHALL NOT BE CONSIDERED IN CONSTRUING OR INTERPRETING
THIS NOTE.
(I)
GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE LAWS OF THE STATE OF CALIFORNIA