OR (II) IF TO THE HOLDER, TO THE ADDRESS OR FACSIMILE NUMBER APPEARING
ON THE BORROWER'S STOCKHOLDER RECORDS OR SUCH OTHER ADDRESS OR FACSIMILE NUMBER
AS THE HOLDER MAY PROVIDE TO THE BORROWER IN ACCORDANCE WITH THIS SECTION.
9.
MISCELLANEOUS.
(A)
THIS DEBENTURE SHALL BE BINDING ON AND INURE TO THE BENEFIT OF THE
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THIS DEBENTURE MAY
BE AMENDED ONLY IN WRITING SIGNED BY THE BORROWER AND THE HOLDER AND THEIR
SUCCESSORS AND ASSIGNS.
(B)
SUBJECT TO SECTION 9(A), ABOVE, NOTHING IN THIS DEBENTURE SHALL BE
CONSTRUED TO GIVE TO ANY PERSON OR CORPORATION OTHER THAN THE BORROWER AND THE
HOLDER ANY LEGAL
5
or equitable right, remedy or cause under this Debenture. This Debenture shall
inure to the sole and exclusive benefit of the Borrower and the Holder.
(C)
ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT
AND INTERPRETATION OF THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
EACH PARTY AGREES THAT
ALL PROCEEDINGS SHALL BE COMMENCED EXCLUSIVELY IN THE STATE AND FEDERAL COURTS
SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN (THE "NEW YORK COURTS").
EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE NEW YORK COURTS FOR ANY PROCEEDING, AND HEREBY IRREVOCABLY WAIVES, AND
AGREES NOT TO ASSERT IN ANY PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY NEW YORK COURT OR THAT A NEW YORK COURT IS AN
INCONVENIENT FORUM FOR SUCH PROCEEDING.
EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR
OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS DEBENTURE AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF.
NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING.
THE PREVAILING PARTY IN A PROCEEDING SHALL BE
REIMBURSED BY THE OTHER PARTY FOR ITS ATTORNEY'S FEES AND OTHER COSTS AND
EXPENSES INCURRED WITH THE INVESTIGATION, PREPARATION AND PROSECUTION OF SUCH
PROCEEDING.
(D)
THE HEADINGS HEREIN ARE FOR CONVENIENCE ONLY, DO NOT CONSTITUTE A
PART OF THIS DEBENTURE AND SHALL NOT BE DEEMED TO LIMIT OR AFFECT ANY OF THE
PROVISIONS HEREOF.
(E)
IN CASE ANY ONE OR MORE OF THE PROVISIONS OF THIS DEBENTURE SHALL
BE INVALID OR UNENFORCEABLE IN ANY RESPECT, THE VALIDITY AND ENFORCEABILITY OF
THE REMAINING TERMS AND PROVISIONS OF THIS DEBENTURE SHALL NOT IN ANY WAY BE
AFFECTED OR IMPAIRED THEREBY AND THE PARTIES WILL ATTEMPT IN GOOD FAITH