RIGHT OR REMEDY.
12.2
THIS AGREEMENT, THE ENGAGEMENT LETTER DATED SEPTEMBER 21, 2004,
BETWEEN UNION BANK AND THE COMPANY, AS AMENDED, AND THE LOAN DOCUMENTS EXECUTED
AND DELIVERED IN CONNECTION THEREWITH CONSTITUTE THE ENTIRE AGREEMENT BETWEEN
THE COMPANY AND THE AGENT;
SUPERSEDE ANY PRIOR AGREEMENTS; CAN BE CHANGED ONLY
BY A WRITING SIGNED BY THE COMPANY, THE AGENT AND THE REQUIRED LENDERS (OR BY
THE AGENT AT THE WRITTEN REQUEST OF THE REQUIRED LENDERS), UNLESS THE CONSENT OF
ALL LENDERS IS REQUIRED PURSUANT TO SECTION 14.10 HEREIN BELOW, AND SHALL BIND
AND BENEFIT THE COMPANY, THE LENDERS AND THE AGENT AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS, AND ANY SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY
IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE FOR WHICH GIVEN.
54
12.3
IN NO EVENT SHALL THE COMPANY, UPON DEMAND BY THE AGENT FOR PAYMENT
OF ANY OBLIGATIONS RELATING HERETO, BY ACCELERATION OF THE MATURITY THEREOF, OR
OTHERWISE, BE OBLIGATED TO PAY INTEREST AND FEES IN EXCESS OF THE AMOUNT
PERMITTED BY LAW.
REGARDLESS OF ANY PROVISION HEREIN OR IN ANY AGREEMENT MADE
IN CONNECTION HEREWITH, THE AGENT SHALL NEVER BE ENTITLED TO RECEIVE, CHARGE OR
APPLY, AS INTEREST ON ANY INDEBTEDNESS RELATING HERETO, ANY AMOUNT IN EXCESS OF
THE MAXIMUM AMOUNT OF INTEREST PERMISSIBLE UNDER APPLICABLE LAW.
IF THE AGENT
EVER RECEIVES, COLLECTS OR APPLIES ANY SUCH EXCESS, IT SHALL BE DEEMED A PARTIAL
REPAYMENT OF PRINCIPAL AND TREATED AS SUCH; AND IF PRINCIPAL IS PAID IN FULL,
ANY REMAINING EXCESS SHALL BE REFUNDED TO THE COMPANY.
THIS PARAGRAPH SHALL
CONTROL EVERY OTHER PROVISION HEREOF, THE LOAN DOCUMENTS AND OF ANY OTHER
AGREEMENT MADE IN CONNECTION HEREWITH.
12.4
IF ANY PROVISION HEREOF OR OF ANY OTHER AGREEMENT MADE IN
CONNECTION HEREWITH IS HELD TO BE ILLEGAL OR UNENFORCEABLE, SUCH PROVISION SHALL
BE FULLY SEVERABLE, AND THE REMAINING PROVISIONS OF THE APPLICABLE AGREEMENT
SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL NOT BE AFFECTED BY SUCH
PROVISION'S SEVERANCE.
FURTHERMORE, IN LIEU OF ANY SUCH PROVISION, THERE SHALL
BE ADDED AUTOMATICALLY AS A PART OF THE APPLICABLE AGREEMENT A LEGAL AND
ENFORCEABLE PROVISION AS SIMILAR IN TERMS TO THE SEVERED PROVISION AS MAY BE
POSSIBLE.
12.5
THE COMPANY, THE LENDERS AND THE AGENT EACH HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THE LOAN DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED THEREUNDER.
THE COMPANY 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 THE
AGENT BE LIABLE FOR LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, PUNITIVE,
OR OTHER
SPECIAL DAMAGES.
12.6
EXCEPT AS OTHERWISE HEREIN PROVIDED, ANY NOTICE OR OTHER
COMMUNICATION REQUIRED HEREUNDER SHALL BE IN WRITING (PROVIDED THAT, ANY
ELECTRONIC COMMUNICATIONS FROM THE COMPANY WITH RESPECT TO ANY REQUEST,
TRANSMISSION, DOCUMENT, ELECTRONIC SIGNATURE, ELECTRONIC MAIL OR FACSIMILE
TRANSMISSION SHALL BE DEEMED BINDING ON THE COMPANY FOR PURPOSES OF THIS
AGREEMENT; PROVIDED FURTHER, THAT ANY SUCH TRANSMISSION SHALL NOT RELIEVE THE