BORROWER WITHOUT GIVING EFFECT TO
APPLICABLE USURY LAWS.
BORROWER AGREE, HOWEVER, THAT IN DETERMINING WHETHER OR
NOT ANY INTEREST PAYABLE UNDER THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS
EXCEEDS THE HIGHEST RATE PERMITTED BY LAW, ANY NON-PRINCIPAL PAYMENT (EXCEPT
PAYMENTS SPECIFICALLY STATED IN THE NOTES OR SUCH OTHER LOAN DOCUMENTS TO BE
"INTEREST"), INCLUDING FEES AND COMMISSIONS AND ALL OTHER SUMS PAYABLE HEREUNDER
OR THEREUNDER OR IN CONNECTION HEREWITH OR THEREWITH, SHALL BE DEEMED, TO THE
FULL EXTENT PERMITTED BY LAW, TO BE AN EXPENSE, FEE, PREMIUM OR PENALTY RATHER
THAN INTEREST.
12.17
WAIVER OF JURY TRIAL.
BORROWER, AGENT AND EACH LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF BORROWER, ANY PARTNER THEREOF, ANY OTHER LOAN PARTY, AGENT OR
LENDERS.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR AGENT AND LENDERS ENTERING
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12.18
WAIVER BY BORROWER.
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS
AGREEMENT OR REQUIRED BY LAW, BORROWER WAIVES (A) PRESENTMENT, DEMAND AND
PROTEST, NOTICE OF PROTEST, NOTICE OF PRESENTMENT, DEFAULT, NON-PAYMENT,
MATURITY, RELEASE, COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL
COMMERCIAL PAPER, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL
PAPER AND GUARANTIES AT ANY TIME HELD BY ANY OF LENDERS AND/OR AGENT ON WHICH
BORROWER MAY IN ANY WAY BE LIABLE; (B) ALL RIGHTS TO NOTICE AND A HEARING PRIOR
TO AGENT'S TAKING POSSESSION OR CONTROL OF, OR TO
REPLEVY, ATTACHMENT OR LEVY
UPON THE COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT
PRIOR TO ALLOWING ANY OF LENDERS AND/OR AGENT TO EXERCISE ANY OF ITS RESPECTIVE
REMEDIES; AND (C) THE BENEFIT OF ALL VALUATION, APPRAISEMENT, EXTENSION AND
EXEMPTION LAWS.
12.19
WAIVER OF MARSHALING.
ALL RIGHTS OF MARSHALING OF ASSETS OF
BORROWER, INCLUDING ANY SUCH RIGHT WITH RESPECT TO THE COLLATERAL, ARE HEREBY
WAIVED BY BORROWER.
67
12.20
WAIVER OF CLAIMS; RELEASE BY BORROWER.
(A)
BORROWER RELEASES LENDERS AND AGENT FROM ANY AND ALL CAUSES OF
ACTION OR CLAIMS WHICH BORROWER MAY NOW OR HEREAFTER HAVE FOR ANY ASSERTED LOSS
OR DAMAGE TO BORROWER CLAIMED TO BE CAUSED BY OR ARISING FROM ANY ACT OR
OMISSION TO ACT ON THE PART OF ANY LENDERS AND/OR AGENT, THEIR RESPECTIVE
OFFICERS, AGENTS OR EMPLOYEES, EXCEPT, IN THE CASE OF ANY LENDER OR AGENT, THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SUCH LENDER OR AGENT (AS THE CASE MAY
BE).
(B)
BORROWER HEREBY ACKNOWLEDGES, AGREES AND AFFIRMS, AS OF THE
EXECUTION DATE AND AS OF THE EFFECTIVE DATE, THAT IT POSSESSES NO CLAIMS,
DEFENSES, OFFSETS, RECOUPMENT OR COUNTERCLAIMS OF ANY KIND OR NATURE AGAINST OR
WITH RESPECT TO THE ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ANY AMENDMENTS THERETO (COLLECTIVELY, THE "CLAIMS"),