SERVICE,
SUCH BORROWER OR GUARANTOR SHALL APPEAR IN ANSWER TO SUCH PROCESS, FAILING WHICH
SUCH BORROWER OR GUARANTOR SHALL BE DEEMED IN DEFAULT AND JUDGMENT MAY BE
ENTERED BY AGENT AGAINST SUCH BORROWER OR GUARANTOR FOR THE AMOUNT OF THE CLAIM
AND OTHER RELIEF REQUESTED.
(D)
BORROWERS, GUARANTORS, AGENT, LENDERS AND EACH ISSUING
BANK EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING
AGREEMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING
AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE.
BORROWERS, GUARANTORS, AGENT, LENDERS AND ANY ISSUING BANK EACH
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY BORROWER, ANY
GUARANTOR, AGENT, ANY LENDER OR ISSUING BANK MAY FILE AN ORIGINAL COUNTERPART OF
A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E)
AGENT AND SECURED PARTIES SHALL NOT HAVE ANY LIABILITY TO
ANY BORROWER OR GUARANTOR (WHETHER IN TORT, CONTRACT, EQUITY OR OTHERWISE) FOR
LOSSES SUFFERED BY SUCH BORROWER OR GUARANTOR IN CONNECTION WITH, ARISING OUT
OF, OR IN ANY WAY RELATED TO THE TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED BY
THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH,
UNLESS IT IS DETERMINED BY A FINAL AND NON-APPEALABLE JUDGMENT OR COURT ORDER
BINDING ON AGENT, SUCH LENDER AND ISSUING BANK, THAT THE LOSSES WERE THE RESULT
OF ACTS OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN
ANY SUCH LITIGATION, AGENT, LENDERS AND EACH ISSUING BANK SHALL BE ENTITLED TO
THE BENEFIT OF THE REBUTTABLE PRESUMPTION THAT IT ACTED IN GOOD FAITH AND WITH
THE EXERCISE OF ORDINARY CARE IN THE PERFORMANCE BY IT OF THE TERMS OF THIS
AGREEMENT.
EACH BORROWER AND GUARANTOR:
(I) CERTIFIES THAT NEITHER AGENT, ANY
LENDER, ANY ISSUING BANK NOR ANY REPRESENTATIVE, AGENT OR ATTORNEY ACTING FOR OR
ON BEHALF OF AGENT, ANY
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LENDER OR ISSUING BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT,
LENDERS AND EACH ISSUING BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE ANY OF THE WAIVERS PROVIDED FOR IN THIS AGREEMENT OR ANY OF THE OTHER
FINANCING AGREEMENTS AND (II) ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT
AND THE OTHER FINANCING AGREEMENTS, AGENT, LENDERS AND EACH ISSUING BANK ARE
RELYING UPON, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS SET FORTH IN
THIS SECTION 11.1 AND ELSEWHERE HEREIN AND THEREIN.
11.2
WAIVER OF NOTICES.
EACH BORROWER AND GUARANTOR HEREBY EXPRESSLY WAIVES
DEMAND, PRESENTMENT, PROTEST AND NOTICE OF PROTEST AND NOTICE OF DISHONOR WITH
RESPECT TO ANY AND ALL INSTRUMENTS AND CHATTEL PAPER,