IN CONNECTION HEREWITH AND TO THE HOLDER AT THE ADDRESS SET
FORTH ON THE SIGNATURE PAGE TO THE PURCHASE AGREEMENT FOR SUCH HOLDER, WITH A
COPY TO JOHN TUCKER, ESQ., 152 WEST 57TH STREET, 4TH FLOOR, NEW YORK, NEW YORK
10019, FACSIMILE NUMBER (212) 541-4434, OR AT SUCH OTHER ADDRESS AS THE BORROWER
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
BORROWER PURSUANT TO THE PURCHASE AGREEMENT.
6.3
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.
6.4
ASSIGNABILITY.
THIS NOTE SHALL BE BINDING UPON THE BORROWER AND ITS
SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF THE HOLDER AND ITS
SUCCESSORS AND ASSIGNS, AND MAY BE ASSIGNED BY THE HOLDER.
8
6.5
COSTS OF COLLECTION.
IF DEFAULT IS MADE IN THE PAYMENT OF THIS NOTE, THE
BORROWER SHALL PAY THE HOLDER HEREOF REASONABLE COSTS OF COLLECTION, INCLUDING
REASONABLE ATTORNEYS' FEES.
6.6
GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
ANY ACTION BROUGHT BY EITHER PARTY AGAINST THE OTHER
CONCERNING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE BROUGHT ONLY
IN THE STATE COURTS OF NEW YORK OR IN THE FEDERAL COURTS LOCATED IN THE STATE OF
NEW YORK.
BOTH PARTIES AND THE INDIVIDUAL SIGNING THIS NOTE ON BEHALF OF THE
BORROWER AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
THE PREVAILING
PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ITS REASONABLE
ATTORNEYS' FEES AND COSTS.
IN THE EVENT THAT ANY PROVISION OF THIS NOTE IS
INVALID OR UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH
PROVISION SHALL BE DEEMED INOPERATIVE TO THE EXTENT THAT IT MAY CONFLICT
THEREWITH AND SHALL BE DEEMED MODIFIED TO CONFORM WITH SUCH STATUTE OR RULE OF
LAW.
ANY SUCH PROVISION WHICH MAY PROVE INVALID OR UNENFORCEABLE UNDER ANY LAW
SHALL NOT AFFECT THE VALIDITY OR UNENFORCEABILITY OF ANY OTHER PROVISION OF THIS
NOTE.
6.7
MAXIMUM PAYMENTS.
NOTHING CONTAINED HEREIN SHALL BE DEEMED TO ESTABLISH
OR REQUIRE THE PAYMENT OF A RATE OF INTEREST OR OTHER CHARGES IN EXCESS OF THE
MAXIMUM PERMITTED BY APPLICABLE LAW.
IN THE EVENT THAT THE RATE OF INTEREST
REQUIRED TO BE PAID OR OTHER CHARGES HEREUNDER EXCEED THE MAXIMUM PERMITTED BY
SUCH LAW, ANY PAYMENTS IN EXCESS OF SUCH MAXIMUM SHALL BE CREDITED AGAINST
AMOUNTS OWED BY THE BORROWER TO THE HOLDER AND THUS REFUNDED TO THE BORROWER.
6.8
SECURITY INTEREST.
THE HOLDER OF THIS NOTE HAS BEEN GRANTED A SECURITY
INTEREST IN CERTAIN ASSETS OF THE BORROWER AS MORE FULLY DESCRIBED IN THE
SECURITY AGREEMENT DATED AS OF THE DATE HEREOF BETWEEN THE BORROWER AND THE
HOLDER, AS THE SAME MAY BE AMENDED, MODIFIED