AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 16.
NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
(D)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE, THE
SECURITIES PURCHASE AGREEMENT, THE SECURITY AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
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INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 15.
SUCCESSORS AND ASSIGNS.
The terms and conditions of this Note shall inure to the benefit of and be
binding upon the respective successors (whether by merger or otherwise) and
permitted assigns of the Company and the Investor.
The Company may not assign
its rights or obligations under this Note.
SECTION 16.
NOTICES.
Whenever notice is required to be given under this Note, unless otherwise
provided herein, such notice shall be delivered in accordance with Section 6.4
of the Securities Purchase Agreement.
The Company shall provide the Holder with
prompt written notice of all actions taken pursuant to this Note, including in
reasonable detail a description of such action and the reason therefore.
SECTION 17.
ENTIRE AGREEMENT.
The Securities Purchase Agreement, the Notes and the Security Agreement
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereto and thereof.
SECTION 18.
HEADINGS.
The headings used in this Note are used for convenience only and are not to be
considered in construing or interpreting this Note.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Note, as amended, to be duly
executed as of March 28, 2007.
VYYO INC.
By:
Name:
Title:
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