Provider accepts and
consents to, generally and unconditionally, the jurisdiction of the aforesaid
courts and agrees that such jurisdiction shall be exclusive, unless waived by
Bank in writing, with respect to any action or proceeding brought by LC Provider
against Bank.
Nothing herein shall limit the right of Bank to bring proceedings
against LC Provider in the courts of any other jurisdiction.
LC Provider hereby
waives, to the full extent permitted by law, any right to stay or to dismiss any
action or proceeding brought before said courts on the basis of forum non
conveniens.
SECTION 14. WAIVER OF JURY TRIAL.
EACH OF BANK AND LC PROVIDER HEREBY WAIVES,
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT.
EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
ANY RELATED INSTRUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.
SECTION 15. LETTER OF CREDIT.
LC Provider hereby acknowledges and agrees that
upon the occurrence and during the continuance of an Event of Default, Bank may
make a draw under the Letter of Credit and exercise any and all of its rights
and remedies with respect thereto.
Section 16. TERMINATION.
This Agreement shall terminate upon the earlier to
occur of (a) both (i) payment in full of all Term Advances and any other amounts
due to Bank under the Term Loan Agreement (but specifically excluding any
amounts due in connection with the Working Capital Loan Agreement or any other
agreement) and (ii) termination of the Term Loan Agreement, or (b) March 2,
2013.
SECTION 17. NON-RECOURSE AGREEMENT.
NOTWITHSTANDING THE FOREGOING, OR ANYTHING
TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IT IS EXPRESSLY ACKNOWLEDGED AND
AGREED THAT THE LIABILITY OF THE LC PROVIDER HEREUNDER AT ALL TIMES SHALL BE
LIMITED TO THE UNDRAWN AMOUNT OF THE LETTER OF CREDIT (AS DEFINED IN SECTION
2).
IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, IF AN EVENT OF
DEFAULT SHALL OCCUR AND BE CONTINUING UNDER THE TERM LOAN AGREEMENT, AND/OR
THERE IS A DEFAULT OR ANY BREACH OF ANY PROVISION HEREUNDER, BANK'S SOLE
RECOURSE AGAINST THE LC PROVIDER SHALL BE ITS ABILITY TO DRAW ON THE LETTER OF
CREDIT.
LC PROVIDER
_____________________________
Rick Weidinger