such other address as the Company or the Holder
may designate
by ten days advance written notice to the other parties hereto. A Notice of
Conversion shall be deemed given when made to the Company pursuant to the
Purchase
Agreement.
4.5
Amendment Provision. The
term "Note" and all references thereto, as
used throughout this instrument,
shall mean this instrument as originally executed, or if later
amended or
supplemented, then as so amended or supplemented, and any successor instrument
as such successor instrument may be amended or supplemented.
4.6
Assignability. This Note shall be binding upon the Company and its
successors and assigns, and shall inure to the benefit of the Holder and its
successors and assigns,
5
and may be assigned by the Holder in accordance with the requirements of the
Purchase
Agreement. The Company may not assign any of its obligations under
this Note without the
prior written consent of the Holder, any such purported
assignment without such consent being
null and void.
4.7
Cost of Collection. In case of any Event of Default under this Note,
the
Company shall pay the Holder reasonable costs of collection, including
reasonable attorneys'
fees.
4.8
Governing Law,
Jurisdiction and Waiver of Jury Trial.
(a)
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(b)
THE
COMPANY HEREBY CONSENTS AND AGREES THAT
THE STATE OR FEDERAL COURTS
LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK SHALL HAVE
EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THE
COMPANY, ON THE ONE HAND, AND THE HOLDER, ON THE OTHER
HAND,
PERTAINING TO THIS NOTE OR ANY OF THE OTHER RELATED
AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
NOTE OR
ANY OF THE RELATED AGREEMENTS; PROVIDED, THAT THE
COMPANY
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD
BY A COURT LOCATED OUTSIDE OF THE COUNTY
OF NEW YORK, STATE OF NEW
YORK; AND FURTHER PROVIDED, THAT
NOTHING IN THIS NOTE SHALL BE DEEMED
OR OPERATE TO PRECLUDE
THE HOLDER FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN
ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO
REALIZE
ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS,
OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
HOLDER.
THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED
IN ANY SUCH COURT,
AND THE COMPANY HEREBY WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS. THE
COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT
AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED
TO THE COMPANY AT THE ADDRESS SET FORTH IN THE PURCHASE
AGREEMENT AND
THAT SERVICE