ANY CROSS-DEFAULTS
ARISING THEREFROM), WHICH EVENT OF DEFAULT PERMITS COMERICA OR GEMINO CAPITAL,
AS APPLICABLE, TO ACCELERATE THE INDEBTEDNESS UNDER THE COMERICA AGREEMENT OR
THE GEMINO CAPITAL FACILITY AS APPLICABLE;
(H)
IF A LIQUIDITY EVENT OCCURS; OR
(I)
IF BORROWER SUFFERS A MATERIAL ADVERSE EFFECT.
20
7.2.
Remedies.
(A)
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER OTHER THAN AS
PROVIDED IN SECTIONS 7.1(B) OR (C) ABOVE (UNLESS CURED BY BORROWER OR WAIVED BY
LENDER), THE ENTIRE UNPAID PRINCIPAL BALANCE OF THE NOTE, TOGETHER WITH ALL
ACCRUED INTEREST THEREON, MAY BE DECLARED BY LENDER DUE AND PAYABLE AND LENDER
SHALL NOT BE REQUIRED TO MAKE ADDITIONAL ADVANCES.
UPON THE OCCURRENCE OF AN
EVENT OF DEFAULT AS PROVIDED IN SECTION 7.1(B) OR (C) ABOVE, THE ENTIRE UNPAID
PRINCIPAL BALANCE OUTSTANDING HEREUNDER AND UNDER THE NOTE, TOGETHER WITH ALL
ACCRUED INTEREST THEREON, SHALL, SUBJECT TO THE TERMS AND CONDITIONS OF THE
SUBORDINATION AGREEMENTS) BE IMMEDIATELY DUE AND PAYABLE REGARDLESS OF ANY PRIOR
FORBEARANCE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO
EVENT SHALL THE INTEREST PAYABLE ON THE UNPAID PRINCIPAL BALANCE OF THE LOANS
EXCEED THE MAXIMUM RATE PERMITTED UNDER APPLICABLE LAWS.
IN THE EVENT THAT SUCH
RATE OF INTEREST EXCEEDS THE MAXIMUM RATE PERMITTED UNDER APPLICABLE LAWS, SUCH
EXCESS SHALL BE DEEMED ADDITIONAL PRINCIPAL PAYMENTS UNDER THIS AGREEMENT AND
THE NOTE.
(B)
IN ADDITION, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT (UNLESS
CURED BY BORROWER OR WAIVED BY LENDER) AND FOR, BUT ONLY FOR, THE PERIOD DURING
WHICH SUCH EVENT OF DEFAULT REMAINS UNCURED OR HAS NOT BEEN WAIVED IN WRITING BY
LENDER, THE INTEREST DUE ON THE PRINCIPAL BALANCE OUTSTANDING HEREUNDER SHALL,
UPON NOTICE FROM LENDER, ACCRUE AT A RATE OF 19% PER ANNUM (CALCULATED IN THE
SAME MANNER AS PROVIDED ABOVE) RATHER THAN THE RATE SPECIFIED IN THE NOTE, IN
EACH OF THE PREAMBLE AND SECTION 1.1 THERETO.
(C)
NO FAILURE OR DELAY ON THE PART OF ANY PARTY HERETO IN THE
EXERCISE OF ANY RIGHT HEREUNDER SHALL IMPAIR SUCH RIGHT OR BE CONSTRUED TO BE A
WAIVER OF, OR ACQUIESCENCE IN, ANY BREACH OF ANY REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT HEREIN, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY
SUCH RIGHT PRECLUDE OTHER OR FURTHER EXERCISE THEREOF OR OF ANY OTHER RIGHT.
ALL RIGHTS AND REMEDIES OF LENDER EXISTING PURSUANT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT ARE CUMULATIVE TO, AND NOT EXCLUSIVE OF, ANY RIGHTS OR
REMEDIES OTHERWISE AVAILABLE, WHETHER BY CONTRACT, AT LAW, IN EQUITY OR
OTHERWISE.
8.
MISCELLANEOUS.
8.1.
Governing Law; Submission to Jurisdiction.
(A)
THIS AGREEMENT AND THE DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF THE
CONFLICT OF LAWS THEREOF.
(B)
THE PARTIES HERETO AGREE THAT ANY SUIT, ACTION OR PROCEEDING
INSTITUTED AGAINST ONE OR MORE OF THEM WITH RESPECT TO THIS AGREEMENT (INCLUDING
ANY EXHIBITS HERETO) SHALL BE BROUGHT IN ANY FEDERAL OR STATE