Nautilus 2009 Annual Report Download - page 322

with a copy (which shall not constitute notice to Borrower) to:
Kirkland & Ellis LLP
300 N. LaSalle Street
Chicago, Illinois 60602
Attention: Jocelyn Hirsch
E-mail: [e-mail]
Except as otherwise specified, e-mail notice shall be effective upon receipt confirmed in writing, and all other notices and communications if
duly given or made shall be effective upon receipt.
Section 11.5 Assignment . This Agreement shall be binding upon and inure to the benefit of the parties and their respective
Successors and permitted assigns. Borrower may not assign or otherwise transfer all or any part of Borrower’s rights or obligations under this
Agreement, the Note, or any of the other Loan Documents without the prior, written consent of Lender (which consent may be withheld by
Lender in its sole and absolute discretion), and any such assignment or transfer purported to be made by Borrower without such consent shall be
ineffective. Lender at any time, with the prior written consent of Borrower (which consent shall not be unreasonably withheld or delayed and
shall not be required during the continuance of an Event of Default), may assign or otherwise transfer all or any part of Lender’s interest under
this Agreement, the Note, and the other Loan Documents (including assignments for security and sales of participations) to any Person and, to
the extent of such assignment, the assignee shall have the same rights and benefits as if such assignee were Lender. Borrower acknowledges and
agrees that Lender may share such information regarding Borrower with a prospective assignee or transferee of Lender’s interest in this
Agreement, the Note, and the other Loan Documents as Lender reasonably deems appropriate, provided that the prospective assignee or
transferee agrees in writing to maintain the confidentiality of such information.
Section 11.6 Severability . Any provision of this Agreement, the Note, or any other Loan Document 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, or affecting the validity or enforceability of such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties to this Agreement waive any provision of law that renders any provision of this Agreement
prohibited or unenforceable in any respect.
Section 11.7 Waiver of Jury Trial . EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.7.
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