TO
THE ADMINISTRATION OF THE REVOLVING LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS.
NONE OF THE BORROWER OR THE GUARANTORS WILL SEEK TO CONSOLIDATE ANY SUCH ACTION,
IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES.
8.19.2 ANY COURT PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENTS SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK
LOCATED IN THE CITY OF NEW YORK OR THE COMMONWEALTH OF MASSACHUSETTS LOCATED IN
BOSTON (OR THE FEDERAL COURTS LOCATED THEREIN). NOTWITHSTANDING THE FOREGOING
FORUM DESIGNATION, EACH OF THE BORROWER AND THE GUARANTORS AGREES THAT THE AGENT
OR THE BANKS SHALL HAVE THE RIGHT TO PROCEED AGAINST EACH OF THEM OR THEIR
RESPECTIVE PROPERTY IN A COURT IN ANY LOCATION TO ENABLE THE AGENT OR SUCH BANK,
RESPECTIVELY, TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY OF THEM, (2) REALIZE
ON ANY OF THE COLLATERAL OR (3) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF THE BANK. EACH OF THE BORROWER AND THE GUARANTORS
WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE VENUE AND LOCATION OF THE COURT IN
WHICH THE AGENT OR ANY BANK HAS COMMENCED ANY PROCEEDING.
8.19.3 WITHOUT PREJUDICING THEIR RIGHTS TO ASSERT SUCH COUNTERCLAIMS IN ANY
OTHER CONTEXT, EACH OF THE BORROWER AND THE GUARANTORS FURTHER AGREES THAT IT
WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE
AGENT OR A BANK TO REALIZE ON ANY COLLATERAL OR OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE AGENT
OR SUCH BANK.
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8.19.4 THE PROVISIONS OF THIS SECTION 8.19 HAVE BEEN FULLY DISCUSSED BY THE
BORROWER, THE GUARANTORS, THE AGENT AND THE BANKS, AND THE PROVISIONS HEREOF
SHALL BE SUBJECT TO NO EXCEPTIONS. THE BORROWER AND GUARANTORS CERTIFY THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR THE BANKS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT AND THE BANKS WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND AGREEMENTS. THE FOREGOING
WAIVERS AND AGREEMENTS CONSTITUTE A MATERIAL INDUCEMENT FOR THE AGENT AND THE
BANKS TO ENTER INTO THIS AGREEMENT.
8.20 Reference to Original Agreement. Upon execution of this Agreement, all
references in any and all of the Credit Documents to the Original Agreement,
however described or identified, shall hereby be deemed to refer to this
Agreement, as amended and/or restated from time to time.
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IN WITNESS WHEREOF, the undersigned have duly executed this Fifth Amended and
Restated Revolving Loan and Letter of Credit Agreement under seal as of the date
first