PRECLUDE ANY OTHER OR
FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT OR POWER.
THE
RIGHTS AND REMEDIES OF THE COLLATERAL AGENT AND THE SECURED PARTY HEREUNDER AND
UNDER THE LOAN PROCEEDS NOTE ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY RIGHTS
OR REMEDIES THAT THEY WOULD OTHERWISE HAVE.
NO WAIVER OF ANY PROVISION OF THIS
AGREEMENT OR THE LOAN PROCEEDS NOTE OR CONSENT TO ANY DEPARTURE BY THE GRANTOR
OR THE SECURED PARTY THEREFROM SHALL IN ANY EVENT BE EFFECTIVE UNLESS THE SAME
SHALL BE PERMITTED BY PARAGRAPH (B) OF THIS SECTION, AND THEN SUCH WAIVER OR
CONSENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE PURPOSE FOR
WHICH GIVEN.
NO NOTICE OR DEMAND ON THE GRANTOR OR THE SECURED PARTY IN ANY
CASE SHALL ENTITLE THE GRANTOR OR THE SECURED PARTY, AS THE CASE MAY BE, TO ANY
OTHER OR FURTHER NOTICE OR DEMAND IN SIMILAR OR OTHER CIRCUMSTANCES.
(B) NEITHER THIS AGREEMENT NOR ANY PROVISION HEREOF MAY BE WAIVED, AMENDED OR
MODIFIED EXCEPT PURSUANT TO AN AGREEMENT OR AGREEMENTS IN WRITING ENTERED INTO
BY THE COLLATERAL AGENT, THE GRANTOR AND THE SECURED PARTY WITH RESPECT TO WHICH
SUCH WAIVER, AMENDMENT OR MODIFICATION IS TO APPLY, SUBJECT TO ANY CONSENT
REQUIRED IN ACCORDANCE WITH SECTION 9.02 OF THE CREDIT AGREEMENT, PROVIDED,
HOWEVER, THE GRANTOR MAY AMEND SCHEDULE 1 HERETO BY ADDING, BUT NOT DELETING,
JURISDICTIONS THERETO BY WRITTEN NOTICE TO THE COLLATERAL AGENT.
SUCH NOTICE
SHALL CONSTITUTE AN AMENDMENT TO SCHEDULE 1 WITHOUT FURTHER ACTION BY THE
SECURED PARTY OR THE COLLATERAL AGENT.
SECTION 4.10. WAIVER OF JURY TRIAL.
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, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE LOAN PROCEEDS NOTE, ANY OTHER LOAN DOCUMENT
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
14
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 INDUCED TO ENTER INTO THIS
AGREEMENT, THE LOAN PROCEEDS NOTE AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 410.
SECTION 4.11. SEVERABILITY.
IN THE EVENT ANY ONE OR MORE OF THE PROVISIONS
CONTAINED IN THIS AGREEMENT, THE LOAN PROCEEDS NOTE OR ANY OTHER LOAN DOCUMENT
SHOULD BE HELD INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, THE VALIDITY,
LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS CONTAINED HEREIN AND
THEREIN SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY (IT BEING
UNDERSTOOD THAT THE INVALIDITY OF A PARTICULAR PROVISION IN A PARTICULAR
JURISDICTION SHALL NOT IN AND OF ITSELF AFFECT THE VALIDITY OF SUCH PROVISION IN
ANY OTHER JURISDICTION).