INURE TO THE BENEFIT
OF THE BORROWER AND THE LENDER AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS,
EXCEPT THAT THE BORROWER SHALL NOT HAVE THE RIGHT TO ASSIGN ITS RIGHTS
THEREUNDER OR ANY INTEREST THEREIN WITHOUT THE LENDER'S PRIOR WRITTEN CONSENT.
THIS AGREEMENT SHALL ALSO BIND ALL PERSONS WHO BECOME A PARTY TO THIS AGREEMENT
AS A BORROWER.
THIS AGREEMENT, TOGETHER WITH THE LOAN DOCUMENTS, COMPRISES THE
42
COMPLETE AND INTEGRATED AGREEMENT OF THE PARTIES ON THE SUBJECT MATTER HEREOF
AND SUPERSEDES ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, ON THE SUBJECT MATTER
HEREOF.
TO THE EXTENT THAT ANY PROVISION OF THIS AGREEMENT CONTRADICTS OTHER
PROVISIONS OF THE LOAN DOCUMENTS, THIS AGREEMENT SHALL CONTROL. WITHOUT LIMITING
THE LENDER'S RIGHT TO SHARE INFORMATION REGARDING THE BORROWER AND ITS
AFFILIATES WITH THE LENDER'S PARTICIPANTS, ACCOUNTANTS, LAWYERS AND OTHER
ADVISORS, THE LENDER AND WELLS FARGO BANK MAY SHARE ANY AND ALL INFORMATION THEY
MAY HAVE IN THEIR POSSESSION REGARDING THE BORROWER AND ITS AFFILIATES SOLELY IN
CONNECTION WITH THE PERFORMANCE OF SERVICES BY LENDER UNDER THIS AGREEMENT.
SECTION 8.11
SEVERABILITY OF PROVISIONS.
ANY PROVISION OF THIS
AGREEMENT THAT IS PROHIBITED OR UNENFORCEABLE SHALL BE INEFFECTIVE TO THE EXTENT
OF SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT INVALIDATING THE REMAINING
PROVISIONS HEREOF.
SECTION 8.12
HEADINGS.
ARTICLE, SECTION AND SUBSECTION HEADINGS IN THIS
AGREEMENT ARE INCLUDED HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT
CONSTITUTE A PART OF THIS AGREEMENT FOR ANY OTHER PURPOSE.
SECTION 8.13
GOVERNING LAW; JURISDICTION, VENUE; WAIVER OF JURY TRIAL.
THE LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS (OTHER THAN CONFLICT LAWS) OF THE STATE OF MINNESOTA.
THE
PARTIES HERETO HEREBY (I) CONSENT TO THE PERSONAL JURISDICTION OF THE STATE AND
FEDERAL COURTS LOCATED IN THE STATE OF MINNESOTA IN CONNECTION WITH ANY
CONTROVERSY RELATED TO THIS AGREEMENT; (II) WAIVE ANY ARGUMENT THAT VENUE IN ANY
SUCH FORUM IS NOT CONVENIENT; (III) AGREE THAT ANY LITIGATION INITIATED BY THE
LENDER OR THE BORROWER IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS MAY BE VENUED IN EITHER THE STATE OR FEDERAL COURTS LOCATED IN THE
CITY OF MINNEAPOLIS, MINNESOTA AND (IV) AGREE THAT A FINAL JUDGMENT IN ANY SUCH
SUIT, ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 8.14
CONFIDENTIALITY.
LENDER AGREES THAT IT WILL USE ITS
REASONABLE EFFORTS NOT TO DISCLOSE WITHOUT THE PRIOR CONSENT OF THE BORROWER
(OTHER THAN TO ITS EMPLOYEES, AUDITORS, ADVISORS OR COUNSEL, PROVIDED SUCH
PERSONS SHALL BE SUBJECT TO THE PROVISIONS OF THIS SECTION 8.14 TO THE SAME
EXTENT AS THE LENDER) ANY INFORMATION WITH RESPECT TO THE BORROWER WHICH IS NOW
OR IN THE FUTURE FURNISHED PURSUANT TO THIS AGREEMENT OR ANY OF THE LOAN
DOCUMENTS AND WHICH IS DESIGNATED BY THE BORROWER TO THE LENDER AS CONFIDENTIAL,
PROVIDED THAT THE LENDER MAY DISCLOSE ANY SUCH INFORMATION (I) AS HAS BECOME
GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN BY