two (2) Business Days prior to the date of any such transfer.
(b)
Amounts to be paid hereunder by the Company
shall be paid by wire transfer of immediately available funds to the account
designated by NFC in Exhibit B or to such other account pursuant to such other
instructions as NFC shall so designate, such
13
designation to be made in writing not less than two (2) Business Days prior to
the date of transfer.
11.12
WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO BE,
OR HAS BEEN, REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF
THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT
IT HAS HAD THE OPPORTUNITY TO DISCUSS, OR IT HAS DISCUSSED, THIS WAIVER WITH
SUCH LEGAL COUNSEL. EACH PARTY HERETO FURTHER ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT FOR EACH OF THE OTHER PARTIES TO ENTER INTO THIS AGREEMENT.
11.13
No Third Party Beneficiaries.
Except for the LC Provider,
which is expressly recognized as a third party beneficiary of this Agreement,
nothing expressed or implied herein is intended or shall be construed to confer
upon any person (other than the parties hereto and their successors and
permitted assigns), any right, remedy or claim by reason of this Agreement or
any term hereof, and all terms contained herein shall be for the sole and
exclusive benefit of the parties thereto and their successors and permitted
assigns.
11.14
LEGEND.
NEITHER THIS AGREEMENT NOR THE GUARANTEE HAVE
BEEN OR WILL BE REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR TERRITORY, AND, EXCEPT
IN CONNECTION WITH AN ASSIGNMENT HEREOF TO THE GUARANTOR UPON A PAYMENT BY THE
GUARANTOR UNDER THE GUARANTEE, THIS AGREEMENT AND THE GUARANTEE MAY BE SOLD,
TRANSFERRED OR ASSIGNED ONLY AS PERMITTED HEREUNDER AND ONLY IF REGISTERED
PURSUANT TO THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS, OR IF AN
EXCEPTION FROM REGISTRATION IS AVAILABLE. BY ITS EXECUTION OF THIS AGREEMENT,
COMPANY AGREES THAT THIS AGREEMENT AND THE GUARANTEE ARE BEING ACQUIRED NOT WITH
A VIEW TO, OR FOR SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION THEREOF.
11.15
Competence and Non-Reliance. NFC and its affiliates
(collectively, solely for purposes of this paragraph, the "NFC Parties"), may
have economic interests that conflict with those of the Company, its Affiliates
and/or their respective stockholders (collectively, solely for purposes of this
paragraph, the "Company Parties").
The Company agrees that nothing in this
Agreement or otherwise will be deemed to create an advisory, fiduciary or agency
relationship or fiduciary or other implied duty (other than any implied duty of
good faith) between any NFC Party, on the one hand, and any Company Party, on
the other.