Nautilus 2011 Annual Report Download - page 66

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EXHIBIT 10.45
Borrower hereby acknowledges and agrees that except as amended previously or herein, each Loan
Document is and shall remain valid and enforceable in accordance with its terms. Borrower agrees that Borrower has no
defenses, setoffs, counterclaims, or claims for recoupment against the indebtedness and obligations represented by the
Credit Agreement, the Note, or any other Loan Document.
1.
Recitals
. The recitals included on the first page of this document are hereby incorporated as part of this
Agreement.
2.
Voluntary and Entire Agreement . This Agreement and the Loan Documents set forth the entire
agreement among Lender and Borrower with respect to the Credit Agreement. No oral promise or agreement of any kind
or nature, other than those that have been reduced to writing and set forth in this Agreement or in the Loan Documents,
has been made between or among Lender and Borrower. Borrower acknowledges that Borrower has been (or has had the
opportunity to be) represented by legal counsel in connection with the negotiation and execution of this Agreement and
that Borrower voluntarily executed this Agreement.
3.
Construction and Conflict With Other Agreements . In the event of any conflict between the terms of
this Agreement and the terms of any other agreements or instruments referred to in this Agreement, the terms of this
Agreement shall control.
4.
Waiver of Jury Trial . EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO TRIAL BY
JURY OF ANY CLAIMS SUCH PARTY HAS OR HEREAFTER MAY HAVE AGAINST ANY OTHER
PARTY HERETO (INCLUDING CROSS-CLAIMS AND COUNTERCLAIMS), WHETHER ANY SUCH
CLAIM ARISES OUT OF CONTRACT, TORT, OR OTHERWISE AND WHETHER ANY SUCH CLAIM
ARISES BEFORE OR AFTER THE DATE OF THIS AGREEMENT.
5.
Attorney Fees . In any action to interpret or enforce any provision of this Agreement, the prevailing
party shall be entitled to recover from the other party such sums as the court may determine reasonable as attorney fees,
including such fees in any appellate proceeding, proceeding under the bankruptcy code, or receivership, in addition to all
other sums provided by law.
6.
Binding Effect . This Agreement shall inure to the benefit of, and shall be binding upon, the respective
successors and permitted assigns of the parties hereto.
7.
Severability . If any term, condition, or provision of this Agreement, or any other document or
instrument referred to in this Agreement, is held invalid for any reason, such offending term, condition, or provision
shall be stricken therefrom, and the remainder of this Agreement shall not be affected thereby.
8.
Applicable Law . This Agreement and any other instruments or agreements required or contemplated
under this Agreement shall be governed by, and construed under, the laws of the state of Washington, without regard to
principles of conflicts of law.
9.
Counterparts . This Agreement may be executed in any number of the counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute but one and the same instrument.
10.
Statutory Notice . UNDER WASHINGTON LAW, ORAL AGREEMENTS OR ORAL
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT ARE NOT ENFORCEABLE.
[ Remainder of page intentionally blank .]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year
first above written.
Section 7.
General
.