TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
NOTHING IN THIS PARAGRAPH 24 SHALL AFFECT THE RIGHT OF
BUYER TO BRING ANY ACTION OR PROCEEDING AGAINST SELLER OR ITS PROPERTY IN THE
COURTS OF OTHER JURISDICTIONS.
EACH PARTY CONSENTS TO THE SERVICE OF ANY AND
ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO IT AT ITS ADDRESS FOR NOTICES HEREUNDER SPECIFIED IN PARAGRAPH 15.
(C)
EACH OF SELLER AND BUYER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) BETWEEN SELLER AND BUYER ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT TO BUYER TO PROVIDE THE FACILITY EVIDENCED BY THIS AGREEMENT.
25.
NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by Buyer shall constitute a
waiver of any other Event of Default and no exercise of any remedy hereunder by
Buyer shall constitute a waiver of its right to exercise any other remedy
hereunder.
No modification or waiver of any provision of this Agreement and no
consent by any Party to a departure herefrom shall be effective unless and until
such shall be in writing and duly executed by both of the parties hereto.
Without limitation on any of the foregoing, the failure to give a notice
pursuant to Paragraph 4(a) hereof will not constitute a waiver of any right to
do so at a later date.
26.
USE OF EMPLOYEE PLAN ASSETS
(A)
IF ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ANY PROVISION OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 ("ERISA") ARE INTENDED TO BE
USED BY SELLER IN A TRANSACTION, SELLER SHALL SO NOTIFY BUYER PRIOR TO THE
TRANSACTION.
SELLER SHALL REPRESENT IN WRITING TO BUYER THAT THE TRANSACTION
DOES NOT CONSTITUTE A PROHIBITED TRANSACTION UNDER ERISA OR IS OTHERWISE EXEMPT
THEREFROM, AND BUYER MAY PROCEED IN RELIANCE THEREON BUT SHALL NOT BE REQUIRED
SO TO PROCEED.
(B)
SUBJECT TO THE LAST SENTENCE OF PARAGRAPH (A) OF THIS PARAGRAPH,
ANY SUCH TRANSACTION SHALL PROCEED ONLY IF SELLER FURNISHES OR HAS FURNISHED TO
BUYER ITS MOST RECENT AVAILABLE AUDITED STATEMENT OF ITS FINANCIAL CONDITION AND
ITS MOST RECENT SUBSEQUENT UNAUDITED STATEMENT OF ITS FINANCIAL CONDITION.
(C)
BY ENTERING INTO A TRANSACTION PURSUANT TO THIS PARAGRAPH, SELLER
SHALL BE DEEMED (I) TO REPRESENT TO BUYER THAT SINCE THE DATE OF SELLER'S LATEST
SUCH FINANCIAL STATEMENTS, THERE HAS
61
BEEN NO MATERIAL ADVERSE CHANGE IN SELLER'S FINANCIAL CONDITION WHICH SELLER HAS
NOT DISCLOSED TO BUYER, AND (II) TO AGREE TO PROVIDE BUYER WITH FUTURE AUDITED
AND UNAUDITED STATEMENTS OF ITS FINANCIAL CONDITION AS THEY ARE ISSUED, SO LONG
ANY SUCH TRANSACTION IS OUTSTANDING.