SECURITY INTEREST OF THE INVESTOR IN SUCH COLLATERAL.
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
19
(II)
NO FAILURE OR DELAY BY ANY PARTY IN
EXERCISING ANY RIGHT, POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER
THEREOF NOR SHALL ANY SINGLE OR PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR
FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR
PRIVILEGE.
THE RIGHTS AND REMEDIES HEREIN PROVIDED SHALL BE CUMULATIVE AND NOT
EXCLUSIVE OF ANY RIGHTS OR REMEDIES PROVIDED BY LAW.
(D)
SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES
HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ANY REFERENCE HEREIN TO
A PARTY SHALL BE DEEMED A REFERENCE TO SUCH PARTY'S SUCCESSORS AND ASSIGNS, IF
ANY.
BORROWER SHALL NOT BE ENTITLED TO ASSIGN ANY OF ITS OBLIGATIONS AND RIGHTS
HEREUNDER OR ANY OTHER TRANSACTION DOCUMENTS WITHOUT THE PRIOR WRITTEN CONSENT
OF INVESTOR.
INVESTOR MAY ASSIGN THIS AGREEMENT AND ANY OF ITS RIGHTS HEREUNDER
WITHOUT RESTRICTION.
(E)
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT IS HELD TO BE INVALID OR UNENFORCEABLE, THE REMAINING PROVISIONS SHALL
NEVERTHELESS BE GIVEN FULL FORCE AND EFFECT.
(F)
INTERPRETATION.
WHEN A REFERENCE IS MADE
IN THIS AGREEMENT TO SECTIONS, SUBSECTIONS, SCHEDULES OR EXHIBITS, SUCH
REFERENCE SHALL BE TO A SECTION, SUBSECTION, SCHEDULE OR EXHIBIT TO THIS
AGREEMENT UNLESS OTHERWISE INDICATED.
THE TERMS "AGREEMENT", "HEREIN",
"HERETO", "HEREOF" AND WORDS OF SIMILAR IMPORT SHALL, UNLESS THE CONTEXT
OTHERWISE REQUIRES, MEAN THIS AGREEMENT, AS AMENDED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME.
THE WORDS "INCLUDE", "INCLUDES" AND "INCLUDING"
WHEN USED HEREIN SHALL BE DEEMED IN EACH CASE TO BE FOLLOWED BY THE WORDS
"WITHOUT LIMITATION".
NO PARTY HERETO SHALL BE OR BE DEEMED TO BE THE DRAFTER
OF THIS AGREEMENT FOR THE PURPOSES OF CONSTRUING THIS AGREEMENT AGAINST ANY
OTHER PARTY.
(G)
HEADINGS AND CAPTIONS.
THE HEADINGS AND
CAPTIONS IN THIS AGREEMENT ARE FOR CONVENIENCE AND REFERENCE PURPOSES ONLY AND
SHALL NOT BE CONSIDERED A PART OF OR AFFECT THE CONSTRUCTION OR INTERPRETATION
OF ANY PROVISION OF THIS AGREEMENT.
(H)
GOVERNING LAW; JURISDICTION.
(I)
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF
THAT WOULD REQUIRE THE APPLICATION OF LAWS OTHER THAN THOSE OF THE STATE OF NEW
YORK.
(II)
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW
YORK.
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY
IRREVOCABLY CONSENTS TO AND ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS.
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
20
EACH PARTY