1351 Dividend Drive, Suite G
Marietta, GA 30067
Telecopy:
(408) 516-8239
Attention: Joe Vitetta
(G)
GOVERNING LAW; FORUM; SERVICE OF PROCESS.
THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES) AS TO ALL MATTERS,
INCLUDING VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES OF AND UNDER
THIS NOTE. VENUE IN ANY AND ALL SUITS, ACTIONS AND PROCEEDINGS BETWEEN THE
PARTIES HERETO AND RELATING TO THE SUBJECT MATTER OF THIS NOTE SHALL BE IN THE
COURTS LOCATED IN THE STATE OF NEW YORK (THE "COURTS"), WHICH SHALL HAVE
EXCLUSIVE JURISDICTION FOR SUCH PURPOSE, AND HOLDER, OBLIGOR AND PARENT HEREBY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND IRREVOCABLY
WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH SUIT,
ACTION OR PROCEEDING. SERVICE OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY
SUCH COURTS.
HOLDER AND OBLIGOR EACH HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A
JURY TRIAL ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS NOTE OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(H)
SEVERABILITY.
THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY OF
ONE OR MORE OF THE CLAUSES OR PROVISIONS OF THIS NOTE IN ANY JURISDICTION SHALL
NOT AFFECT THE VALIDITY, LEGALITY OR ENFORCEABILITY OF THIS NOTE IN SUCH
JURISDICTION OR THE VALIDITY, LEGALITY OR ENFORCEABILITY OF THIS NOTE, INCLUDING
ANY SUCH CLAUSE OR PROVISION, IN ANY OTHER JURISDICTION, IT BEING INTENDED THAT
ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE ENFORCEABLE TO THE
FULLEST EXTENT PERMITTED BY LAW.
(I)
SUCCESSORS; ASSIGNS; THIRD-PARTY BENEFICIARIES. THE PROVISIONS OF
THIS NOTE SHALL BE BINDING UPON THE PARTIES HERETO AND THEIR RESPECTIVE HEIRS,
SUCCESSORS AND PERMITTED ASSIGNS. NEITHER THIS NOTE NOR THE RIGHTS OR
OBLIGATIONS OF OBLIGOR MAY BE ASSIGNED BY OBLIGOR WITHOUT THE PRIOR WRITTEN
CONSENT OF HOLDER.
HOLDER MAY ASSIGN HIS RIGHTS OR OBLIGATIONS HEREUNDER TO ANY
7
AFFILIATE, PROVIDED THAT ANY ASSIGNMENT TO AN AFFILIATE WHICH IS NOT A WHOLLY
OWNED SUBSIDIARY OF THE HOLDER SHALL BE SUBJECT TO THE PRIOR WRITTEN CONSENT OF
OBLIGOR WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. ANY
ATTEMPTED ASSIGNMENT IN CONTRAVENTION OF THIS NOTE SHALL BE NULL AND VOID AND OF
NO EFFECT.
THIS NOTE IS FOR THE SOLE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE HEIRS, SUCCESSORS AND PERMITTED ASSIGNS AND NO PROVISION HEREOF,
WHETHER EXPRESS OR IMPLIED, IS INTENDED, OR SHALL BE CONSTRUED, TO GIVE ANY
OTHER PERSON ANY RIGHTS OR REMEDIES, WHETHER LEGAL OR EQUITABLE, HEREUNDER.
(J)
AMENDMENTS.
THIS NOTE MAY NOT BE AMENDED, MODIFIED OR
SUPPLEMENTED EXCEPT IN A WRITING SIGNED BY OBLIGOR AND HOLDER.
(K)
WAIVER.
ANY WAIVER (WHETHER EXPRESS OR IMPLIED) OF ANY DEFAULT OR
BREACH OF OR BY ANY PARTY TO THIS NOTE SHALL NOT BE EFFECTIVE UNLESS EVIDENCED
BY A WRITING SIGNED BY THE PARTY AGAINST WHICH SUCH WAIVER IS SOUGHT TO BE
ENFORCED. NO SUCH WAIVER FOR ANY PURPOSE SHALL CONSTITUTE A WAIVER OF ANY OTHER
OR SUBSEQUENT DEFAULT OR