or such
Lender, and the Borrowers shall be liable to, and shall indemnify, defend and
hold Agent or such Lender harmless for, the amount of such payment or interest
surrendered or disgorged.
The provisions of this Section 8.10 shall survive
execution and delivery of this Agreement and the documents, agreements and
instruments to be executed or delivered herewith.
8.12.
Relationship.
Each Borrower agrees that the relationship
between Agent and such Borrower and between each Lender and Borrower is that of
creditor and debtor and not that of partners or joint venturers.
This Agreement
does not constitute a partnership agreement, or any other association between
Agent and any Borrower or between any Lender and any Borrower.
Each Borrower
acknowledges that Agent and each Lender has acted at all times only as a
creditor to such Borrower within the normal and usual scope of the activities
normally undertaken by a creditor and in no event has Agent or any Lender
attempted to exercise any control over such Borrower or its business or
affairs.
Each Borrower further acknowledges that Agent and each Lender has not
taken or failed to take any action under or in connection with its respective
rights under the Credit Agreement and the other Loan Documents that in any way
or to any extent has interfered with or adversely affects such Borrower's
ownership of Collateral.
8.13.
Governing Law: Consent to Jurisdiction and Venue.
THIS
AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
AGREEMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO
PRECLUDE THE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION.
THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE.
THE BORROWERS FURTHER IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS.
THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM
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8.14.
Mutual Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS UNDER THIS AGREEMENT AND ANY