TO
A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OF
THE PARTIES HERETO HEREBY WAIVES ANY RIGHT WHICH 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. EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE
OR ATTORNEY OF ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
16.
Miscellaneous.
(a) This Agreement may be executed in several counterparts and by each party on
a separate counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument. In proving
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart signed by the party against which enforcement is sought.
(b) This Agreement may not be amended except in a writing signed by the parties
hereto. The Senior Creditor may, in its sole and absolute discretion, without
any consent or approval of the Subordinated Creditor, waive any provisions of
this Agreement benefiting the Senior Creditor; provided, however, that such
waiver shall be effective only if in writing and signed by the Senior Creditor
and, if such action affects the Company, if also signed by the Company, and
shall be limited to the specific provision or provisions expressly so waived.
(c) This Agreement shall be binding upon the permitted successors and assigns of
the parties hereto and shall inure to the benefit of the parties hereto and
their respective successors and assigns. EBW may assign this Agreement to any
Person controlling, controlled by or under common control with EBW who or which
agrees in a writing to become a party hereto and to succeed to the rights and be
bound by all of the obligations of EBW hereunder and (ii) subject to the Option
granted to EBW pursuant to Section 10 above (including the time periods
associated with exercise of the Option), the Senior Creditor may assign this
Agreement to any Person who or which agrees in a writing to become a party
hereto and to succeed to the rights and be bound by all of the obligations of
the Senior Creditor hereunder.
[Remainder of Page Intentionally Left Blank]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SENIOR CREDITOR:
YA GLOBAL INVESTMENTS, L.P.
By:
Yorkville Advisors, LLC, its Investment Manager
By:
/s/ Mark Angelo
Name: Mark Angelo
Title: President and Founder
EBW:
EBAUM'S WORLD, INC.
By:
/s/ Eric Bauman