collateral account and applied
(A) first, to reimburse the Issuer from time to time for any drawings under such
Letters of Credit and (B) then, following the expiration of all Letters of
Credit, to all other obligations of the types described in clauses "FIFTH" and
"SIXTH" above in the manner provided in this Section 11.5.
XII.
WAIVERS AND JUDICIAL PROCEEDINGS.
12.1.
WAIVER OF NOTICE.
EACH BORROWER HEREBY WAIVES
NOTICE OF NON-PAYMENT OF ANY OF THE RECEIVABLES, DEMAND, PRESENTMENT, PROTEST
AND NOTICE THEREOF WITH RESPECT TO ANY AND ALL INSTRUMENTS, NOTICE OF ACCEPTANCE
HEREOF, NOTICE OF LOANS OR ADVANCES MADE, CREDIT EXTENDED, COLLATERAL RECEIVED
OR DELIVERED, OR ANY OTHER ACTION TAKEN IN RELIANCE HEREON, AND ALL OTHER
DEMANDS AND NOTICES OF ANY DESCRIPTION, EXCEPT SUCH AS ARE EXPRESSLY PROVIDED
FOR HEREIN.
12.2.
DELAY.
NO DELAY OR OMISSION ON AGENT'S OR ANY
LENDER'S PART IN EXERCISING ANY RIGHT, REMEDY OR OPTION SHALL OPERATE AS A
WAIVER OF SUCH OR ANY OTHER RIGHT, REMEDY OR OPTION OR OF ANY DEFAULT OR EVENT
OF DEFAULT.
12.3.
JURY WAIVER.
EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
85
CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
XIII.
EFFECTIVE DATE AND TERMINATION.
13.1.
TERM.
THIS AGREEMENT, WHICH SHALL INURE TO THE
BENEFIT OF AND SHALL BE BINDING UPON THE RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS OF EACH BORROWER, AGENT AND EACH LENDER, SHALL BECOME EFFECTIVE ON THE
DATE HEREOF AND SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL MARCH 14, 2013
(THE "TERM") UNLESS SOONER TERMINATED AS HEREIN PROVIDED.
BORROWERS MAY
TERMINATE THIS AGREEMENT AT ANY TIME UPON SIXTY (60) DAYS' PRIOR WRITTEN NOTICE
UPON PAYMENT IN FULL OF THE OBLIGATIONS.
IN THE EVENT THE OBLIGATIONS ARE
PREPAID IN FULL PRIOR TO THE LAST DAY OF THE TERM (THE DATE OF SUCH PREPAYMENT
HEREINAFTER REFERRED TO AS THE "EARLY TERMINATION DATE"), BORROWERS SHALL PAY TO
AGENT FOR THE BENEFIT OF LENDERS AN EARLY TERMINATION FEE IN AN AMOUNT EQUAL TO
(X) 3.00% OF THE MAXIMUM LOAN AMOUNT IF THE EARLY TERMINATION DATE OCCURS ON OR
AFTER THE CLOSING DATE TO AND