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This excerpt taken from the MTMC 8-K filed Jun 17, 2009. SECTION 9 9.1 Termination and Release. Except as otherwise provided in this Agreement, the security interests created under this Agreement shall terminate on the date on which the Obligations have been indefeasibly paid in full, at which time Investment Manager, shall reassign and deliver to Pledgor or to such other person as Pledgor shall reasonably designate, against receipt, all of the Collateral owned by Pledgor that has not been sold or otherwise applied by Investment Manager, pursuant to this Agreement and that is still being held by it pursuant to this Agreement, together with appropriate instructions of reassignment and release. Any such reassignment to a Pledgor shall be (i) without recourse to, or any warranty by, Investment Manager, and (ii) at the expense of Pledgor. 9.2 Notices. All notices, requests and demands to or upon Investment Manager or Pledgor to be effective shall be in writing, and shall be given in the manner and to the addresses set forth in, and shall be deemed given or delivered as provided in, the L/C Agreement. 9.3 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 9.4 Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except pursuant to a written agreement executed by Pledgor and Investment Manager; provided, however, that this Agreement may be supplemented by each Stock Pledge Agreement Supplement delivered pursuant to this Agreement and the schedules to this Agreement may be amended and updated by Pledgor as and to the extent required by this Agreement to reflect (i) the ownership or acquisition by Pledgor of any Additional Capital Stock after the Closing Date, or (ii) any transfer of Capital Stock that is permitted by the L/C Agreement. (b) Investment Manager shall not by any act (except by a written instrument pursuant to Section 9.4(a) of this Agreement), any failure to act, or any delay in acting be deemed to have (1) waived any right or remedy under this Agreement or any of the other Loan Documents, or (i) acquiesced in any Event of Default or in any breach of any of the terms and conditions of this Agreement or any of the other Loan Documents. No failure to exercise, nor any delay in exercising, any right, power or privilege of Investment Manager under this Agreement or any of the other Loan Documents shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege of Investment Manager under this Agreement or any of the other Loan Documents shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by, or on behalf of Investment Manager -11- of any right or remedy under this Agreement or any other Loan Agreement on anyone occasion shall not be construed as a bar to any right or remedy that Investment Manager would otherwise have on any future occasion. (c) The rights and remedies provided to Investment Manager in this Agreement are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law. 9.5 Section Headings. The section headings used in this Agreement are for convenience of reference only and are not to affect the construction of this Agreement or be taken into consideration in the interpretation of this Agreement. 9.6 Successors and Assigns. This Agreement shall be binding upon the successors and assigns of Pledgor, and shall inure to the benefit of Investment Manager and its successors, indorsees, transferees and assigns; provided, however, that Pledgor may not assign any of its rights, or delegate any of its duties or obligations, under this Agreement without the prior written consent of Investment Manager. 9.7 Determinations by Investment Manager. Except as otherwise specifically required by this Agreement, each determination and decision made by Investment Manager under or with respect to this Agreement shall be made in the sole discretion of Investment Manager. 9.8 Subordination Agreement. This Agreement is subject to the terms of the Subordination Agreement, which agreement is incorporated herein by reference. Notwithstanding any statement to the contrary contained in this Agreement, no remedies shall be pursued, except in accordance with the terms of the Subordination Agreement. Notwithstanding the incorporation by reference in of the Subordination Agreement, Pledgor acknowledges that no other parties, including Pledgor or any Borrower or any of their successors or assigns, are intended to be benefited, in any way, by the Subordination Agreement. 9.9 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. 9.10 Submission to Jurisdiction; Waivers. (a) Pledgor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that Investment Manager may otherwise have to bring any action or proceeding relating to this Agreement -12- against Pledgor or its properties in the courts of any jurisdiction. (b) Pledgor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. 9.11 WAIVER OF JURY TRIAL. PLEDGOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE L/C AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER. PLEDGOR HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED. IN NO EVENT WILL INVESTMENT MANAGER BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES. |
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