EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS OR ACTIONS OF THE LENDER RELATING TO THE ADMINISTRATION OF THE LOAN
FACILITY OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND (ii) AGREE THAT NEITHER THE
CO-BORROWERS NOR THE LENDER WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS
PROHIBITED BY APPLICABLE LAW, EACH OF THE CO-BORROWERS AND THE LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM
OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF
THE CO-BORROWERS AND THE LENDER HEREBY CERTIFIES THAT NO 54 [SECOND AMENDED AND
RESTATED REVOLVING CREDIT LOAN AGREEMENT]
GRAPHIC [g273521kg07i004.gif]
REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE OTHER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVERS. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE
LENDER TO MAKE THE LOAN FACILITIES AVAILABLE TO THE CO-BORROWERS AND TO ACCEPT
THE LOAN DOCUMENTS. IT IS INTENDED THAT SAID WAIVERS SHALL APPLY TO ANY AND ALL
DEFENSES, RIGHTS, AND/OR COUNTERCLAIMS IN ANY ACTION OR PROCEEDING. THE
CO-BORROWERS AND THE LENDER RECOGNIZE THAT ANY DISPUTE ARISING IN CONNECTION
WITH THE LOAN FACILITY IS LIKELY TO BE COMPLEX AND CONSEQUENTLY THEY WISH TO
STREAMLINE AND MINIMIZE THE COST OF THE DISPUTE RESOLUTION PROCESS BY AGREEING
TO WAIVE THEIR RIGHTS TO A JURY TRIAL. Section 9.09 Remedies Cumulative. No
remedy herein conferred upon or reserved to the Lender is intended to be
exclusive of any other remedy or remedies; but each and every such remedy shall
be cumulative, and shall be in addition to every other remedy given hereunder,
or now or hereafter existing at law or in equity or by statute. No express or
implied waiver by the Lender of any Event of Default hereunder shall in any way
be, or construed to be, a waiver of any future or subsequent Event of Default.
No delay or omission to exercise any right or power accruing upon any Event of
Default continuing as aforesaid, shall impair any such right or power or shall
be construed to be a waiver of any such Event of Default, or acquiescence
therein; and every such right and power may be exercised from time to time and
as often as may be deemed expedient. ARTICLE X MISCELLANEOUS Section 10.01
Expenses. The Co-Borrowers shall pay on demand all reasonable expenses of the
Lender in connection with the preparation, administration, default, collection,
waiver or amendment of loan terms, or in connection with the Lender's exercise,
preservation or enforcement of any of their respective rights, remedies or
options hereunder, including, without limitation, reasonable fees of outside
legal counsel or the reasonable allocated costs of in-house legal counsel,