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provided, further that in no event shall Buyer or any other Purchaser
Representative be obligated or required to return any materials furnished by
Customer or any of their respective Subsidiaries.
SECTION 12.11.
TIME IS OF THE ESSENCE.
TIME IS OF THE
ESSENCE UNDER THE TRANSACTION DOCUMENTS AND ALL REFERENCES TO A TIME SHALL MEAN
NEW YORK TIME IN EFFECT ON THE DATE OF THE ACTION UNLESS OTHERWISE EXPRESSLY
STATED IN THE TRANSACTION DOCUMENTS.
SECTION 12.12.
WAIVER OF JURY TRIAL.
EACH OF THE PARTIES
TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY OF THE OTHER TRANSACTION DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS TRANSACTION OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED.
THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF
THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH PARTY HERETO ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND
THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE
DEALINGS.
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 12.12 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR TO
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING THERETO.
IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
SECTION 12.13.
HEADINGS.
THE HEADINGS IN THE TRANSACTION
DOCUMENTS ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE
INTERPRETATION OR CONSTRUCTION OF THE TRANSACTION DOCUMENTS.
SECTION 12.14.
NO PRESUMPTION.
SHOULD ANY PROVISION OF
THE TRANSACTION DOCUMENTS REQUIRE JUDICIAL INTERPRETATION, IT IS AGREED THAT A
COURT INTERPRETING OR CONSTRUING THE SAME SHALL NOT APPLY A PRESUMPTION THAT THE
TERMS HEREOF SHALL BE MORE STRICTLY CONSTRUED AGAINST ANY PERSON BY REASON OF
THE RULE OF CONSTRUCTION THAT A DOCUMENT IS TO BE CONSTRUED MORE STRICTLY
AGAINST THE PERSON WHO ITSELF OR THROUGH ITS AGENT PREPARED THE SAME, IT BEING
AGREED THAT ALL PARTIES HAVE PARTICIPATED IN THE PREPARATION OF THE TRANSACTION
DOCUMENTS.
SECTION 12.15.
CONTINUING ASSIGNMENT; REVERSION OF
WAREHOUSE ASSETS.
THIS AGREEMENT SHALL CREATE A CONTINUING ASSIGNMENT OF AND
INTEREST IN THE WAREHOUSE ASSETS AND SHALL (A) REMAIN IN FULL FORCE AND EFFECT
UNTIL INDEFEASIBLE