THE BENEFIT OF ALL
VALUATION, APPRAISEMENT AND EXEMPTION LAWS; (D) ANY RIGHT BORROWER MAY HAVE UPON
PAYMENT IN FULL OF THE OBLIGATIONS TO REQUIRE AGENT OR LENDERS TO TERMINATE
THEIR SECURITY INTEREST IN THE COLLATERAL OR IN ANY OTHER PROPERTY OF BORROWER
UNTIL TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS, EXCLUDING,
HOWEVER THE
95
TERMS OF THIS AGREEMENT THAT PERTAIN TO CLAIMS OF INDEMNITY THAT ARE UNMATURED
AS OF THE DATE OF TERMINATION OF THIS AGREEMENT; AND (E) NOTICE OF ACCEPTANCE
HEREOF.
BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A MATERIAL
INDUCEMENT TO AGENT'S AND LENDERS' ENTERING INTO THIS AGREEMENT AND THAT AGENT
AND LENDERS ARE RELYING UPON THE FOREGOING WAIVERS IN FUTURE DEALINGS WITH
BORROWER.
BORROWER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING
WAIVERS WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED SUCH
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
13.16
JURY TRIAL WAIVER.
BORROWER, AGENT AND LENDERS MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON THIS LOAN AGREEMENT, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
LOAN AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF AGENT OR ANY LENDER RELATING TO THE
ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT
NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
BORROWER CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF AGENT OR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR BORROWER, AGENT AND LENDERS TO ENTER INTO THE
TRANSACTIONS CONTEMPLATED HEREBY.
13.17
DTPA WAIVER.
IF IT EVER SHOULD BE DETERMINED BY A
COURT OF COMPETENT JURISDICTION THAT THE DECEPTIVE TRADE PRACTICES - CONSUMER
PROTECTION ACT (TEXAS BUS. & COM. CODE ANN. SECTION 17.01 ET SEQ. (VERNON SUPP.
1987)), IS APPLICABLE TO THIS TRANSACTION, BORROWER HEREBY WAIVES ALL PROVISIONS
OF SUCH ACT OTHER THAN SECTION 17.555 THEREOF PERTAINING TO CONTRIBUTION AND
INDEMNITY, AND BORROWER EXPRESSLY WARRANTS AND REPRESENTS THAT BORROWER (A) HAS
ASSETS OF $5,000,000 OR MORE, (B) HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND
BUSINESS MATTERS THAT ENABLE BORROWER TO EVALUATE THE MERITS AND RISKS OF THIS
TRANSACTION, (C) IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION
RELATIVE TO LENDERS AND (D) HAS BEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
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13.18
Oral Agreements Ineffective.
IN NO EVENT
SHALL ANY ORAL AGREEMENTS, PROMISES, ACTIONS, INACTIONS, KNOWLEDGE, COURSE OF
CONDUCT, COURSE OF DEALINGS OR THE LIKE BE EFFECTIVE TO AMEND, TERMINATE, EXTEND
OR OTHERWISE MODIFY THIS