issue any press releases or other public
disclosure using the name of Agent, any Lender or any of the Affiliates of Agent
or any Lender or referring to this Agreement or the other Loan Documents without
at least two (2) Business Days' prior written notice to Agent and such Lender
and without the prior written consent of Agent and such Lender unless (and only
to the extent that) Borrower is required to do so under law and then, in any
event, Borrower will consult with Agent and such Lender before issuing such
press release or other public disclosure.
Borrower consents to the publication
by Agent and such Lender of advertising material relating to the financing
transactions contemplated by this Agreement using Borrower's name, product
photographs, logo or trademark.
Agent and each Lender reserves the right to
provide to industry trade organizations generic information necessary and
customary for inclusion in league table measurements.
12.18
Counterparts.
This Agreement may be executed in any number of
counterparts, each of which, when taken together, shall be deemed to be one and
the same instrument.
Delivery of an executed counterpart of a signature page of
this document by facsimile shall be effective as delivery of a manually executed
counterpart of this document.
12.19
Headings.
Section headings herein are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
53
12.20
WAIVER OF JURY TRIAL.
(a)
AGENT, LENDERS AND BORROWER HEREBY ACKNOWLEDGE THAT DISPUTES
ARISING UNDER THIS AGREEMENT OR OTHERWISE RELATING TO THE OBLIGATIONS OF
BORROWER TO AGENT AND LENDERS ARE LIKELY TO BE COMPLEX AND THEY DESIRE TO
STREAMLINE AND MINIMIZE THE COST OF RESOLVING SUCH DISPUTES.
THEREFORE, AGENT,
LENDERS AND BORROWER IRREVOCABLY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT
(AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION, COUNTERCLAIM, DISPUTE OR PROCEEDING BASED UPON, OR RELATED TO THE
SUBJECT MATTER OF THIS AGREEMENT OR OTHERWISE RELATING TO THE OBLIGATIONS OF
BORROWER TO LENDER.
WITHOUT LIMITING THE FOREGOING, THIS WAIVER AND COVENANT
APPLIES:
(i)
TO ALL CLAIMS AGAINST ALL PARTIES TO SUCH DISPUTES, ACTIONS AND
PROCEEDINGS INCLUDING THOSE INVOLVING AGENT, LENDERS, BORROWER OR ANY OF THEIR
RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES OR RELATED ENTITIES, OR ANY
OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, ATTORNEY OR PARTNER OF ANY OF THEM;
(ii)
IRRESPECTIVE OF WHETHER SUCH DISPUTE, ACTION OR PROCEEDING
ARISES UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT, NOTE, PAPER, INSTRUMENT OR
DOCUMENT HERETOFORE OR HEREAFTER EXECUTED RELATING TO ANY OF THE OBLIGATIONS OF
BORROWER TO AGENT AND THE LENDERS;
(iii)
IRRESPECTIVE OF WHETHER SUCH DISPUTE, ACTION OR PROCEEDING
ARISES IN CONNECTION WITH OR IS BASED UPON INTENTIONAL OR UNINTENTIONAL CONDUCT,
FRAUD, IMPROPER ACTION OR FAILURE TO ACT, OR ANY OTHER CIRCUMSTANCES.
(b)
THIS WAIVER IS KNOWINGLY, AND VOLUNTARILY MADE BY BORROWER, AGENT
AND LENDERS, AND BORROWER, AGENT AND LENDERS ACKNOWLEDGE THAT NEITHER OF THEM,
NOR ANY PERSON ACTING ON BEHALF OF EITHER OF THEM, HAS MADE ANY REPRESENTATIONS
TO INDUCE THIS WAIVER