or the first attempted delivery on a Business Day, (c) in the case of
expedited prepaid delivery upon the first attempted delivery on a Business Day,
(d) in the case of telecopier, upon receipt of answerback confirmation or (e) in
the case of email, at the time such email was sent, provided that such
telecopied or emailed notice was also delivered as required in this Section. A
party receiving a notice which does not comply with the technical requirements
for notice under this Section may elect to waive any deficiencies and treat the
notice as having been properly given.
16.
NON-ASSIGNABILITY
(A)
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE TRANSACTION
DOCUMENTS AND UNDER ANY TRANSACTION SHALL NOT BE ASSIGNED BY EITHER PARTY
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED, HOWEVER, THAT
BUYER MAY ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS
AND/OR UNDER ANY TRANSACTION TO AN AFFILIATE, WITHOUT THE PRIOR WRITTEN CONSENT
OF SELLER SO LONG AS THAT AFFILIATE HAS A NET WORTH AT LEAST EQUAL TO THAT OF
BUYER AS OF THE PURCHASE DATE; AND PROVIDED FURTHER, HOWEVER, THAT UPON THE
OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT, THE
NON-DEFAULTING PARTY SHALL HAVE AN UNFETTERED RIGHT TO ASSIGN ITS RIGHTS AND
OBLIGATIONS WITHOUT THE CONSENT OF THE DEFAULTING PARTY.
(B)
THE TRANSFERRING PARTY PURSUANT TO SUBSECTION (A) ABOVE SHALL BE
RESPONSIBLE FOR THE PAYMENT OF ALL FEES AND EXPENSES RELATING TO SUCH TRANSFER
OF ITS RIGHTS AND OBLIGATIONS.
(C)
BUYER SHALL BE ENTITLED TO ISSUE ONE OR MORE PARTICIPATION
INTERESTS WITH RESPECT TO ANY OR ALL OF THE TRANSACTIONS.
(D)
SUBJECT TO THE FOREGOING, THE TRANSACTION DOCUMENTS AND ANY
TRANSACTIONS SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE PARTIES
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. NOTHING IN THE TRANSACTION
DOCUMENTS, EXPRESS OR IMPLIED, SHALL GIVE TO ANY PERSON, OTHER THAN THE PARTIES
TO THE TRANSACTION DOCUMENTS AND THEIR RESPECTIVE SUCCESSORS, ANY BENEFIT OR ANY
LEGAL OR EQUITABLE RIGHT, POWER, REMEDY OR CLAIM UNDER THE TRANSACTION
DOCUMENTS.
45
17.
GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
(A)
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
(B)
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY (I) SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT
SITTING IN MANHATTAN, AND ANY APPELLATE COURT FROM ANY SUCH COURT, SOLELY FOR
THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS OBLIGATIONS
UNDER THIS AGREEMENT OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY TRANSACTION
UNDER THIS AGREEMENT AND (II) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO, ANY DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT AND ANY RIGHT OF JURISDICTION ON ACCOUNT OF ITS
PLACE OF RESIDENCE OR DOMICILE.
(C)
EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY
MAY EFFECTIVELY