of this Agreement be declared invalid for
any reason in any jurisdiction, such declaration shall have no effect upon the
remaining portions of this Agreement.
In addition, the entirety of this
Agreement shall continue in full force and effect in all jurisdictions and said
remaining portions of this Agreement shall continue in full force and effect in
the subject jurisdiction as if this Agreement had been executed with the invalid
portions thereof deleted.
10.
All notices and communications provided for herein shall be in
writing and shall be deemed effective when sent in accordance with Section 18 of
the Security Agreement, as amended hereby.
11.
IN THE EVENT THAT LENDER BRINGS ANY ACTION OR PROCEEDING IN
CONNECTION HEREWITH IN ANY COURT OF RECORD OF THE COMMONWEALTH OF MASSACHUSETTS,
OR THE UNITED STATES DISTRICT COURT LOCATED IN SUCH COMMONWEALTH, BORROWER
HEREBY IRREVOCABLY CONSENTS TO AND CONFERS PERSONAL JURISDICTION OF SUCH COURT
OVER BORROWER BY SUCH COURT.
IN ANY SUCH ACTION OR PROCEEDING, BORROWER HEREBY
WAIVES PERSONAL SERVICE OR ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES
THAT SERVICE THEREOF MAY BE MADE UPON BORROWER BY MAILING A COPY OF SUCH
SUMMONS, COMPLAINT OR OTHER PROCESS BY UNITED STATES CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, POSTAGE PREPAID, TO BORROWER AT THE ADDRESS SET FORTH IN THE
CREDIT AGREEMENT.
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
BORROWER AND LENDER EACH HEREBY AGREE NOT
TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OR RIGHT BY JURY, AND EACH
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE OR
EXECUTED IN CONNECTION HEREWITH OR ANY CAUSE OR CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY.
LENDER IS
HEREBY AUTHORIZED
TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF
THIS WAIVER BY BORROWER.
EXCEPT S PROHIBITED BY LAW, BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
BORROWER
(A) CERTIFIES THAT NO REPRESENTATIVE OR ATTORNEY OF LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVERS, AND (B) ACKNOWLEDGES THAT THE LENDER HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS
A PARTY BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first set forth above.
Witnessed by:
BORROWER:
BIOSPHERE MEDICAL,