|
the application of MBI's discretion or opinion, to the granting or withholding of MBI's consent or
<br /> approval, to the consideration of whether a matter or thing is satisfactory or acceptable to MBI, or
<br /> otherwise involving the decision making of MBI, shall be deemed to mean that MBI shall decide
<br /> unilaterally using its sole and absolute discretion or judgment. Where it expressly specifies herein, or in
<br /> any of the Loan Documents, that the exercise of discretion or judgment by MBI shall be reasonable or
<br /> that any consent, approval, decision or other determination by MBI shall not be unreasonably withheld, it
<br /> is intended to mean that (i) MBI shall act in a commercially reasonable manner in the exercise of such
<br /> discretion or judgment and in considering any such consent, approval, decision or other determination,
<br /> and(ii) any such any consent, approval, decision or other determination by MBI shall not be unreasonably
<br /> withheld, conditioned or delayed. Where it expressly specifies herein, or in any of the Loan Documents,
<br /> that a decision or determination shall be in the sole discretion of MBI, it is intended to mean that MBI shall
<br /> decide unilaterally using its sole and absolute discretion or judgment.
<br /> Section 19.23 USA Patriot Act Notice; Compliance. The USA Patriot Act of 2001 (Public Law
<br /> 107-56) and federal regulations issued with respect thereto require all financial institutions to obtain,
<br /> verify and record certain information that identifies each individual or business entity which opens an
<br /> "account" or establishes a relationship with such financial institution. Consequently, MBI may from
<br /> time-to-time request, and Borrower shall provide to MBI, (i) Borrower's name, address, tax identification
<br /> number, date of birth, and other information that will allow MBI to identify Borrower, (ii) the name,
<br /> address, tax identification number, date of birth, and other information that will allow MBI to identify
<br /> each guarantor of the Loan, (iii) the name, address, tax identification number, date of birth, and other
<br /> information that will allow MBI to identify each officer, partner, member, shareholder or other
<br /> stakeholder of Borrower, and/or(iv) such other identification information as shall be necessary for MBI
<br /> to comply with federal law. An "account" for this purpose may include, without limitation, a deposit
<br /> account, cash management service, a transaction or asset account, a credit account, a loan or other
<br /> extension of credit,and/or other financial services product.
<br /> Section 19.24 Waiver of Trial by Jury. Borrower, Issuer and MBI hereby agree that any
<br /> suit, action or proceeding, whether a claim or counterclaim, brought or instituted by any party on
<br /> or with respect to this Agreement or any other document executed in connection herewith or which
<br /> in any way relates,directly or indirectly to the Note or any event,transaction or occurrence arising out
<br /> of or in any way connected with this Agreement or the dealings of the parties with respect thereto,shall
<br /> be tried only by a court and not by a jury. BORROWER, ISSUER AND MBI HEREBY
<br /> EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
<br /> PROCEEDING. Borrower acknowledges that Borrower may have a right to a trial by jury in any such suit,
<br /> action or proceeding and that Borrower hereby is knowingly, intentionally and voluntarily waiving any such
<br /> right. Borrower further acknowledges and agrees that this Section is material to this Agreement between
<br /> Borrower,Issuer and MBI and that adequate consideration has been given by MBI and Issuer and received by
<br /> Borrower in exchange for the waiver made by Borrower pursuant to this Section.
<br /> Section 19.25 Submission To Jurisdiction. Borrower irrevocably agrees that any suit,
<br /> action or other legal proceeding arising directly, indirectly or otherwise in connection with, out of,
<br /> related to or from the Loan, the Note, this Agreement or any of the other Loan Documents may be
<br /> brought in a court located within the State of Indiana Furthermore, Borrower irrevocably (i)
<br /> consents and submits to the jurisdiction of any local, state or federal court located within the State
<br /> of Indiana, (ii) waives any objection which Borrower may have to the laying of venue in any suit,
<br /> action or proceeding in any such courts, and (iii) waives any claim that any such suit, action or
<br /> proceeding has been brought in an inconvenient forum. Notwithstanding anything contained in
<br /> this paragraph to the contrary, Issuer and MBI shall have the right to commence and litigate any
<br /> suit, action or proceeding against Borrower or any property of Borrower in any court of any other
<br /> appropriate jurisdiction. Nothing herein shall be deemed to limit any rights, powers or privileges
<br /> Page 67
<br />
|