OF THIS
NOTE SHALL NOT BE AFFECTED THEREBY, AND THIS NOTE SHALL BE LIBERALLY CONSTRUED
SO AS TO CARRY OUT THE INTENT OF THE PARTIES TO IT.
EACH WAIVER IN THIS NOTE IS
SUBJECT TO THE OVERRIDING AND CONTROLLING RULE THAT IT SHALL BE EFFECTIVE ONLY
IF AND TO THE EXTENT THAT (A) IT IS NOT PROHIBITED BY APPLICABLE LAW AND (B)
APPLICABLE LAW NEITHER PROVIDES FOR NOR ALLOWS ANY MATERIAL SANCTIONS TO BE
IMPOSED AGAINST PAYMENT AGENT OR ANY PAYEE FOR HAVING BARGAINED FOR AND OBTAINED
IT.
17.
PREPAYMENT.
MAKER MAY AT ANY TIME PAY THE
FULL AMOUNT OR ANY PART OF THIS NOTE WITHOUT THE PAYMENT OF ANY PREMIUM OR FEE,
PROVIDED THAT MAKER MUST PROVIDE WRITTEN NOTICE TO PAYMENT AGENT AT LEAST THIRTY
(30) DAYS PRIOR TO THE DATE OF SUCH PREPAYMENT.
ALL PREPAYMENTS HEREON SHALL BE
APPLIED FIRST TO ACCRUED INTEREST AND THE BALANCE TO PRINCIPAL.
18.
MAKER, PAYMENT AGENT AND EACH PAYEE
EXPRESSLY AGREE, PURSUANT TO SECTION 346.004 OF THE TEXAS FINANCE CODE, THAT
CHAPTER 346 SHALL NOT APPLY TO THIS NOTE OR TO ANY ADVANCE EVIDENCED BY THIS
NOTE AND THAT THIS NOTE AND ALL SUCH ADVANCES SHALL NOT BE GOVERNED BY OR
SUBJECT TO THE PROVISIONS OF CHAPTER 346 IN ANY MANNER WHATSOEVER.
19.
NOTICE.
ALL NOTICES AND OTHER
COMMUNICATIONS HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN
DULY GIVEN ON THE DAY WHEN DELIVERED PERSONALLY OR SENT BY FACSIMILE (WITH
RECEIPT CONFIRMED), AND TWO (2) BUSINESS DAYS AFTER THE DATE OF MAILING WHEN
SENT BY REPUTABLE OVERNIGHT DELIVERY SERVICE (RECEIPT REQUESTED), IN EACH CASE
TO THE OTHER PARTIES AT THE FOLLOWING ADDRESSES AND TELECOPIER NUMBERS (OR TO
SUCH OTHER ADDRESS OR TELECOPIER NUMBER AS SHALL BE COMMUNICATED TO THE OTHER
PARTIES BY LIKE NOTICE): (I) IF TO MAKER, TO: WHITTIER ENERGY COMPANY OR
WHITTIER ENERGY CORPORATION, 333 CLAY STREET, SUITE 1100, HOUSTON, TEXAS 77002,
FACSIMILE: (713) 850-1879; AND (II) IF TO PAYMENT AGENT, TO IT AT THE ADDRESS
SET FORTH BESIDE ITS SIGNATURE ON THE SIGNATURE PAGE TO THIS NOTE.
20.
ENTIRE AGREEMENT.
THIS NOTE, TOGETHER WITH
THE SUBORDINATION AGREEMENT, EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN PAYMENT AGENT, EACH PAYEE, PARENT AND MAKER AND OTHER PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR CONFLICTING OR
INCONSISTENT AGREEMENTS, CONSENTS AND UNDERSTANDINGS RELATING TO SUCH SUBJECT
MATTER.
MAKER, PARENT, PAYMENT AGENT AND EACH PAYEE ACKNOWLEDGE AND AGREE THAT
THERE IS NO ORAL AGREEMENT BETWEEN OR AMONG THEM THAT HAS NOT BEEN INCORPORATED
IN THIS NOTE.
21.
INVESTMENT INTENT.
WITH RESPECT TO THIS
NOTE AND THE COMMON STOCK, EACH OF THE PAYMENT AGENT AND EACH PAYEE HEREBY
REPRESENTS AND WARRANTS TO PARENT THAT HE, SHE OR IT:
8
(a)
is an "accredited investor" as defined in
Rule 501 of Regulation D of the Securities Act of 1933, as amended (the
"Securities Act");
(b)
is in a financial position to hold the
Common Stock for an indefinite period of time, is able to bear the economic