ANY
LATER EXERCISE THEREOF OR ANY EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE
HEREUNDER.
8.
CERTAIN WAIVERS BY THE COMPANY.
EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE IN THIS NOTE, THE COMPANY AND EVERY ENDORSER OR GUARANTOR, IF ANY, OF
THIS NOTE WAIVE PRESENTMENT, DEMAND, NOTICE, PROTEST AND ALL OTHER DEMANDS AND
NOTICES IN CONNECTION WITH THE DELIVERY, ACCEPTANCE, PERFORMANCE, DEFAULT OR
ENFORCEMENT OF THIS NOTE, AND ASSENT TO ANY EXTENSION OR POSTPONEMENT OF THE
TIME OF PAYMENT OR ANY OTHER INDULGENCE, TO ANY SUBSTITUTION, EXCHANGE OR
RELEASE OF COLLATERAL AVAILABLE TO HOLDER, IF ANY, AND TO THE ADDITION OR
RELEASE OF ANY OTHER PARTY OR PERSON PRIMARILY OR SECONDARILY LIABLE.
9.
NO UNLAWFUL INTEREST.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, PAYMENT OF ANY INTEREST OR OTHER AMOUNT HEREUNDER SHALL NOT BE
REQUIRED IF SUCH PAYMENT WOULD BE
16
UNLAWFUL.
IN ANY SUCH EVENT, THIS NOTE SHALL AUTOMATICALLY BE DEEMED AMENDED SO
THAT INTEREST CHARGES AND ALL OTHER PAYMENTS REQUIRED HEREUNDER, INDIVIDUALLY
AND IN THE AGGREGATE, SHALL BE EQUAL TO BUT NOT GREATER THAN THE MAXIMUM
PERMITTED BY LAW.
AS A CONDITION TO ITS OBLIGATION TO MAKE ANY PAYMENT OF
INTEREST HEREUNDER WITHOUT WITHHOLDING AS MAY OTHERWISE BE REQUIRED UNDER
APPLICABLE U.S. TAX LAWS, THE COMPANY MAY REQUIRE THAT THE HOLDER SUBMIT TO THE
COMPANY A PROPERLY COMPLETED IRS FORM W-8 OR SIMILAR OR SUCESSOR FORM
SUFFICIENTLY DEMONSTRATING TO THE REASONABLE SATISFACTION OF THE COMPANY THAT NO
SUCH WITHHOLDING IS REQUIRED.
10.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF HOLDER.
BY ACCEPTING
THIS NOTE, HOLDER REPRESENTS AND WARRANTS TO THE COMPANY, AND AGREES, AS
FOLLOWS:
(A)
THE PRINCIPAL ADDRESS OF HOLDER IS OUTSIDE
OF THE UNITED STATES, AND HOLDER IS NOT A U.S. PERSON AS SUCH TERM IS DEFINED
AND USED IN REGULATION S.
(B)
AT THE TIME THE "BUY" ORDER WAS ORIGINATED
IN RESPECT OF HOLDER'S ACQUISITION OF THIS NOTE, HOLDER WAS OUTSIDE OF THE U.S.,
AND HOLDER IS OUTSIDE THE U.S. AS OF THE DATE OF THE EXECUTION AND DELIVERY OF
THIS NOTE BY HOLDER.
NO OFFER TO ACQUIRE THIS NOTE WAS MADE TO HOLDER OR ITS
REPRESENTATIVES INSIDE THE UNITED STATES.
(C)
HOLDER IS AN ACCREDITED "INVESTOR" WITHIN
THE MEANING OF RULE 501(A) UNDER THE SECURITIES ACT.
(D)
HOLDER IS ACQUIRING THIS NOTE FOR
HIS/HER/ITS OWN ACCOUNT, NOT ON BEHALF OR FOR THE ACCOUNT OF ANY U.S. PERSON,
AND THE PURCHASE OF THIS NOTE HAS NOT BEEN PRE-ARRANGED WITH A PURCHASER IN THE
U.S.
(E)
THE HOLDER WILL MAKE ALL RESALES OF THIS
NOTE ONLY OUTSIDE OF THE UNITED STATES IN COMPLIANCE WITH REGULATION S, OR
PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
SPECIFICALLY,
HOLDER WILL NOT RESELL THIS NOTE TO ANY U.S. PERSON OR WITHIN THE UNITED STATES
PRIOR TO THE EXPIRATION OF ONE YEAR (THE "DISTRIBUTION COMPLIANCE PERIOD") AFTER
THE CLOSING OF THE OFFERING TO WHICH THIS NOTE RELATES, EXCEPT PURSUANT TO
REGISTRATION UNDER THE SECURITIES ACT OR AN EXEMPTION FROM REGISTRATION UNDER