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covenants and agrees that it shall not sell, transfer, assign or otherwise
alienate the Intellectual Property, other than for fair consideration in the
ordinary course of Borrower's business, without the prior written consent of
Lender.
Section 3. Notices. All notices, approvals, requests, demands and other
communications hereunder shall be given in accordance with Section 10.1 of the
Credit Agreement.
Section 4. Governing Law: Jurisdiction; Venue. THIS AGREEMENT IS A CONTRACT
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER
HEREBY CONSENTS AND AGREES THAT THE SUPERIOR COURT OF THE COMMONWEALTH OF
MASSACHUSETTS, SITTING IN SUFFOLK COUNTY, OR AT THE LENDER'S OPTION, THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, SITTING IN BOSTON,
SHALL HAVE EXCLUSIVE JURIDRICTION TO HEAR AND DETERMINE ANY SUIT TO ENFORCE THE
RIGHTS OF THE LENDER UNDER THIS AGREEMENT AND ANY CLAIMS OR DISPUTES BETWEEN THE
BORROWER, ON THE ONE HAND, AND THE LENDER, ON THE OTHER HAND, PERTAINING TO THIS
AGREEMENT OR ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE
BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT AND CONSENTS TO SERVICE OF THE
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SET
FORTH IN SECTION 10.1 OF THE CREDIT AGREEMENT. THE BORROWER IRREVOCABLY WAIVES
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH ACTION BROUGHT IN THE COURT REFERRED TO IN THE SECTION AND IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH ACTION SUCH ACTION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
Section 5. Waiver of Jury Trail. THE BORROWER AND THE LENDER HEREBY
KNOWINGLY, VOLUNTARY AND INTENTIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
THE LENDER RELATING TO THE ADMINISTRATION OR ENFORCEMENT OF THIS AGREEMENT, AND
AGREES THAT IT WILL NOT SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CAN NOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS
PROHIBITED BY LAW, THE BORROWER AND THE LENDER HEREBY WAIVE ANY RIGHT THEY MAY
HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE
ANY SPECIAL, EXEMPLARY,
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PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. THE BORROWER (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE LENDER HAS REPRESENTED EXPRESSLY OR OTHERWISE, THAT THE LENDER