ANY OTHER AGREEMENT OR
INSTRUMENT, (III) ANY EXCHANGE, RELEASE OR NONPERFECTION OF ANY OTHER
COLLATERAL, OR ANY RELEASE OR AMENDMENT OR WAIVER OF OR CONSENT TO OR DEPARTURE
FROM ANY GUARANTEE, FOR ALL OR ANY OF THE OBLIGATIONS, OR (IV) ANY OTHER
CIRCUMSTANCE WHICH MIGHT OTHERWISE CONSTITUTE A DEFENSE AVAILABLE TO, OR
DISCHARGE OF THE BORROWER IN RESPECT OF THE OBLIGATIONS OR IN RESPECT OF THIS
AGREEMENT.
12.
MISCELLANEOUS.
THIS AGREEMENT CAN BE WAIVED, MODIFIED, AMENDED,
TERMINATED OR DISCHARGED, AND THE SECURITY INTEREST CAN BE RELEASED, ONLY
EXPLICITLY IN A WRITING SIGNED BY THE PARTY AGAINST WHOM SUCH WAIVER,
MODIFICATION, AMENDMENT, TERMINATION, DISCHARGE OR RELEASE IS SOUGHT TO BE
ENFORCED. MERE DELAY OR FAILURE TO ACT SHALL NOT PRECLUDE THE EXERCISE OR
ENFORCEMENT OF ANY OF THE SECURED PARTIES' RIGHTS OR REMEDIES. ALL RIGHTS AND
REMEDIES OF A SECURED PARTY SHALL BE CUMULATIVE AND MAY BE EXERCISED SINGULARLY
OR CONCURRENTLY AND THE EXERCISE OR ENFORCEMENT OF ANY ONE SUCH RIGHT OR REMEDY
SHALL NEITHER BE A CONDITION TO NOR BAR THE EXERCISE OR ENFORCEMENT OF ANY
OTHER.
THE SECURED PARTIES SHALL NOT BE OBLIGATED TO PRESERVE ANY RIGHTS
BORROWER MAY HAVE AGAINST PRIOR PARTIES, TO REALIZE ON THE COLLATERAL AT ALL OR
IN ANY PARTICULAR MANNER OR ORDER, OR TO APPLY ANY CASH PROCEEDS OF THE
COLLATERAL IN ANY PARTICULAR ORDER OF APPLICATION. THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF BORROWER AND THE SECURED PARTIES AND
THEIR RESPECTIVE PARTICIPANTS, SUCCESSORS, AND PERMITTED ASSIGNS AND SHALL TAKE
EFFECT WHEN SIGNED BY BORROWER AND THE SECURED PARTIES, AND BORROWER WAIVES
NOTICE OF SECURED PARTIES' ACCEPTANCE HEREOF; PROVIDED, HOWEVER, THAT THE
SECURED PARTIES' RIGHTS HEREUNDER MAY NOT BE TRANSFERRED OR ASSIGNED TO ANY
THIRD PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF BORROWER.
THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAW PROVISIONS. IF ANY PROVISION OR APPLICATION OF THIS AGREEMENT
IS HELD UNLAWFUL OR UNENFORCEABLE IN ANY RESPECT, SUCH ILLEGALITY OR
UNENFORCEABILITY SHALL NOT AFFECT OTHER PROVISIONS OR APPLICATIONS WHICH CAN BE
GIVEN EFFECT AND THIS AGREEMENT SHALL BE CONSTRUED AS IF THE UNLAWFUL OR
UNENFORCEABLE PROVISION OR APPLICATION HAD NEVER BEEN CONTAINED HEREIN OR
PRESCRIBED HEREBY. ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
AGREEMENT SHALL SURVIVE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE CREATION AND PAYMENT OF THE OBLIGATIONS.
13.
NOTICES.
ANY NOTICES OR OTHER COMMUNICATIONS REQUIRED OR
PERMITTED TO BE GIVEN UNDER THE TERMS OF THIS AGREEMENT MUST BE IN WRITING AND
WILL BE DEEMED TO HAVE BEEN DELIVERED:
(I) UPON RECEIPT, WHEN DELIVERED
PERSONALLY; (II) UPON RECEIPT, WHEN SENT BY ELECTRONIC MAIL OR FACSIMILE
(PROVIDED CONFIRMATION OF TRANSMISSION IS MECHANICALLY OR ELECTRONICALLY
GENERATED AND
9
KEPT ON FILE BY THE SENDING PARTY); OR (III) ONE BUSINESS DAY AFTER DEPOSIT WITH
AN OVERNIGHT COURIER SERVICE, IN EACH CASE PROPERLY ADDRESSED TO THE PARTY TO
RECEIVE THE SAME.
THE ADDRESSES AND FACSIMILE NUMBERS FOR SUCH COMMUNICATIONS
SHALL BE:
If to the