NOTE.
WAIVER OF JURY TRIAL.
BORROWER HEREBY WAIVES ANY AND ALL RIGHTS THAT IT MAY NOW
OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE TO
A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING EITHER DIRECTLY OR INDIRECTLY IN
ANY ACTION OR PROCEEDING BETWEEN BORROWER, LENDER OR ITS SUCCESSORS AND ASSIGNS,
OUT OF OR IN ANY WAY CONNECTED WITH THIS NOTE, THE OTHER LOAN DOCUMENTS, THE
OBLIGATIONS AND/OR THE COLLATERAL.
IT IS INTENDED THAT SAID WAIVER SHALL APPLY
TO ANY AND ALL DEFENSES, RIGHTS, AND/OR COUNTERCLAIMS IN ANY ACTION OR
PROCEEDINGS BETWEEN BORROWER AND LENDER.
BORROWER WAIVES ALL RIGHTS TO
INTERPOSE ANY CLAIMS, DEDUCTIONS, SETOFFS OR COUNTERCLAIMS OF ANY KIND, NATURE
OR DESCRIPTION IN ANY ACTION OR PROCEEDING INSTITUTED BY LENDER WITH RESPECT TO
THIS NOTE, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, THE COLLATERAL OR ANY
MATTER ARISING THEREFROM OR RELATING THERETO, EXCEPT COMPULSORY COUNTERCLAIMS.
CONSENT TO JURISDICTION.
BORROWER HEREBY (a) IRREVOCABLY SUBMITS AND CONSENTS
TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE
STATE OF NEW YORK, NEW YORK COUNTY WITH RESPECT TO ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF THIS NOTE, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS
AND/OR THE COLLATERAL OR ANY MATTER ARISING THEREFROM OR RELATING THERETO, AND
(b) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE OR FORUM
NON CONVENIENS WITH RESPECT THERETO.
IN ANY SUCH ACTION OR PROCEEDING, BORROWER
WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT OR OTHER PROCESS AND PAPERS
THEREIN AND AGREES THAT THE SERVICE THEREOF MAY BE MADE BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO BORROWER AT ITS OFFICES SET FORTH HEREIN
OR OTHER ADDRESS THEREOF OF WHICH LENDER HAS RECEIVED NOTICE AS PROVIDED IN THE
AGREEMENT.
NOTWITHSTANDING THE FOREGOING, BORROWER CONSENTS TO THE COMMENCEMENT
BY LENDER OF ANY SUIT, ACTION OR PROCEEDING IN ANY OTHER JURISDICTION TO ENFORCE
LENDER'S RIGHTS AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER
HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR
PROCEEDING.
ASSIGNMENT:
Lender reserves the right to sell, assign, transfer, negotiate, or
grant participation interests in all or any part of this Note, or any interest
in Lender's rights and benefits hereunder.
4
LOST NOTE:
In the event of the loss, theft, destruction or mutilation of this
Note, upon request of Lender and submission of evidence reasonably satisfactory
to the Borrower of such loss, theft, destruction or mutilation, and, in the case
of any such loss, theft, or destruction, upon delivery of a bond or indemnity
reasonably satisfactory to Borrower, or in the case of any such mutilation, upon
surrender and cancellation of this Note, Borrower will issue a new Note of like
tenor as the lost, stolen, destroyed or mutilated Note.
AMENDMENT AND RESTATEMENT:
This Note is given in substitution for, and amends
and restates in its entirety, and as so amended and restated supersedes, that
certain Installment Note dated September 10, 2011 made by