IN AN INCONVENIENT FORUM, THAT THE VENUE OF SUCH PROCEEDING IS
IMPROPER, OR THAT THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR THE SUBJECT
MATTER HEREOF OR THEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURT;
(C)
CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING IN ANY MANNER AT THE
TIME PERMITTED BY CHAPTER 223A OF THE GENERAL LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND AGREES THAT SERVICE OF PROCESS BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED IN OR PURSUANT TO
SECTION 13 IS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE; AND
(D)
WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH PROCEEDING ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
15.5.
WAIVER OF JURY TRIAL.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
THAT CANNOT BE WAIVED, EACH OF THE COMPANY, THE LENDERS AND THE AGENT WAIVES,
AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT OR THE CONDUCT OF THE PARTIES HERETO, WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE.
THE COMPANY
ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE LENDERS THAT THE FOREGOING
SENTENCE CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH EACH OF THE LENDERS HAS
RELIED AND WILL RELY IN ENTERING INTO THIS AGREEMENT AND ANY OTHER CREDIT
DOCUMENT.
THE COMPANY, ANY LENDER OR THE AGENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS AGREEMENT WITH ANY
97
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPANY, THE LENDERS AND THE
AGENT TO THE WAIVER OF THEIR RIGHTS TO TRIAL BY JURY.
15.6.
INTERPRETATION; GOVERNING LAW; ETC.
TIME IS (AND SHALL BE) OF THE
ESSENCE IN THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
ALL COVENANTS,
AGREEMENTS, REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT OR IN CERTIFICATES DELIVERED PURSUANT HERETO OR THERETO SHALL BE
DEEMED TO HAVE BEEN RELIED ON BY EACH LENDER, NOTWITHSTANDING ANY INVESTIGATION
MADE BY ANY LENDER ON ITS BEHALF, AND SHALL SURVIVE THE EXECUTION AND DELIVERY
TO THE LENDERS HEREOF AND THEREOF.
THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION HEREOF SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER
PROVISION HEREOF, AND ANY INVALID OR UNENFORCEABLE PROVISION SHALL BE MODIFIED
SO AS TO BE ENFORCED TO THE MAXIMUM EXTENT OF ITS VALIDITY OR ENFORCEABILITY.
THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL
NOT LIMIT OR OTHERWISE AFFECT THE MEANING HEREOF.
THIS AGREEMENT, THE OTHER
CREDIT DOCUMENTS AND THE WARRANT DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING
OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND
SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS UNDERSTANDINGS AND AGREEMENTS, WHETHER
WRITTEN OR ORAL, WITH RESPECT TO SUCH SUBJECT MATTER.
THIS AGREEMENT MAY BE