IF SENT DURING NORMAL BUSINESS HOURS OF THE RECIPIENT, IF
NOT, THEN ON THE NEXT BUSINESS DAY, (C) FIVE DAYS AFTER HAVING BEEN SENT BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, OR
(D) ONE DAY AFTER DEPOSIT WITH A NATIONALLY RECOGNIZED OVERNIGHT COURIER,
SPECIFYING NEXT DAY DELIVERY, WITH WRITTEN VERIFICATION OF RECEIPT. ALL
COMMUNICATIONS SHALL BE SENT TO THE COMPANY AT THE ADDRESS PROVIDED IN THE
PURCHASE AGREEMENT EXECUTED IN CONNECTION HEREWITH, AND TO THE HOLDER AT THE
ADDRESS PROVIDED IN THE PURCHASE AGREEMENT FOR SUCH HOLDER, WITH A COPY TO JOHN
E. TUCKER, ESQ., 825 THIRD AVENUE, 14TH FLOOR, NEW YORK, NEW YORK 10022,
FACSIMILE NUMBER (212) 541-4434, OR AT SUCH OTHER ADDRESS AS THE COMPANY OR THE
HOLDER MAY DESIGNATE BY TEN DAYS ADVANCE WRITTEN NOTICE TO THE OTHER PARTIES
HERETO.
4.4
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.
4.5
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, 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.
4.6
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.
4.7
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
5
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