the Lender may now have or may have in the
future under or in connection with the Loan and Security Agreement or any other
Document or any of the instruments or agreements referred to therein, as the
same may be amended from time to time.
10.
Effectiveness. This Agreement shall become effective as of the date first
set forth above (the "Agreement Effective Date") only upon satisfaction in full
in the judgment of the Lender of each of the following conditions:
a.
The Lender shall have received copies by facsimile of duly executed
signature pages of this Agreement from each Borrower, the Authorized
Representative and the Lender.
b.
The Lender shall have received all UCC-3 amendment statements as it shall
deem necessary or reasonably desirable in order to correctly identify each of
the Borrowers and correctly identify the collateral granted by each such
Borrower, to be filed on or immediately prior to the Agreement Effective Date
under the UCC.
c.
The representations and warranties of or on behalf of the Borrowers in this
Agreement shall be true and correct on and as of the Agreement Effective Date.
d.
The Borrowers shall have (i) paid to Kaye Scholer LLP all outstanding legal
fees and expenses related to its representation of the Lender in connection with
this Agreement and/or the Loan and Security Agreement and (ii) paid and
reimbursed the Lender for all other reasonable costs and out-of-pocket expenses
incurred in connection with the negotiation, preparation, execution and delivery
of this Agreement and all other documents and instruments delivered in
connection herewith.
11.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CONFLICTS OF LAWS PRINCIPLES THEREOF.
12.
WAIVER OF JURY TRIAL, JURISDICTION AND VENUE. EACH OF THE PARTIES HERETO
HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION WITH
RESPECT TO ANY MATTER RELATED TO THIS AGREEMENT OR THE LOAN AND SECURITY
AGREEMENT, AND HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE STATE AND
FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK CITY, NEW YORK IN CONNECTION
WITH ANY ACTION OR PROCEEDING ARISINGOUT OF OR RELATING TO THIS AGREEMENT OR THE
LOAN AND SECURITY AGREEMENT. IN ANY SUCH LITIGATION, EACH OF THE PARTIES HERETO
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES
THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO THE
PARTIES HERETO AT THEIR ADDRESSES SET FORTH ON SCHEDULE I TO THE LOAN AND
SECURITY AGREEMENT, AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME. THE PARTIES HERETO SHALL APPEAR IN ANSWER TO SUCH SUMMONS,
COMPLAINT OR OTHER PROCESS WITHIN THE TIME PRESCRIBED BY LAW, FAILING WHICH THE
PARTY FAILING TO SO APPEAR SHALL BE DEEMED IN DEFAULT AND JUDGMENT MAY BE
ENTERED BY THE OTHER PARTY FOR THE AMOUNT OF THE CLAIM AND OTHER RELIEF
REQUESTED THEREIN.
13.
Counterparts. This Agreement may be executed by