THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
WHICHEVER PLEDGEE MAY ELECT (EXCEPT THAT PLEDGEE SHALL HAVE THE RIGHT TO BRING
ANY ACTION OR PROCEEDING AGAINST PLEDGOR OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION WHICH PLEDGEE DEEMS NECESSARY OR APPROPRIATE IN ORDER TO
REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE ITS RIGHTS AGAINST PLEDGOR OR
ITS PROPERTY).
PLEDGOR AND PLEDGEE EACH WAIVES THE RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT,
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND ANY
5
RIGHT EITHER MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS, LACK OF
PERSONAL JURISDICTION, OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS
BROUGHT IN ACCORDANCE WITH THIS SECTION 15.
16.
COUNTERPARTS, ETC.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL, BUT ALL OF WHICH TAKEN
TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
DELIVERY OF AN EXECUTED
COUNTERPART OF THIS AGREEMENT BY TELEFACSIMILE SHALL HAVE THE SAME FORCE AND
EFFECT AS THE DELIVERY OF AN ORIGINAL EXECUTED COUNTERPART OF THIS AGREEMENT.
ANY PARTY DELIVERING AN EXECUTED COUNTERPART OF THIS AGREEMENT BY TELEFACSIMILE
SHALL ALSO DELIVER AN ORIGINAL EXECUTED COUNTERPART, BUT THE FAILURE TO DO SO
SHALL NOT AFFECT THE VALIDITY, ENFORCEABILITY OR BINDING EFFECT OF THIS
AGREEMENT.
17.
SUPPLEMENT.
THIS AGREEMENT IS A SUPPLEMENT TO, AND IS HEREBY
INCORPORATED INTO, THE FINANCING AGREEMENTS AND MADE A PART THEREOF.
18.
INTERPRETATION.
TO THE EXTENT THAT ANY COVENANTS SET FORTH IN
SECTION 3 HERETO, OR REPRESENTATIONS OR WARRANTIES SET FORTH IN SECTION 2 HERETO
ARE IN DIRECT CONFLICT WITH THE TERMS OF ANY COVENANTS, REPRESENTATIONS OR
WARRANTIES CONTAINED IN THE FINANCING AGREEMENTS, THE TERMS OF THIS AGREEMENT
SHALL CONTROL.
TO THE EXTENT ANY OTHER PROVISIONS OF THIS AGREEMENT ARE IN
DIRECT CONFLICT WITH THE TERMS OF ANY OTHER PROVISIONS OF THE FINANCING
AGREEMENTS, THE TERMS OF THE FINANCING AGREEMENTS SHALL CONTROL.
19.
ACKNOWLEDGMENT AND RESTATEMENT.
(A)
PLEDGOR HEREBY ACKNOWLEDGES, CONFIRMS AND AGREES THAT PLEDGOR IS
INDEBTED TO PLEDGEE AND LENDERS IN RESPECT OF ANY OBLIGATIONS, LIABILITIES OR
INDEBTEDNESS FOR LOANS, ADVANCES AND LETTER OF CREDIT ACCOMMODATIONS TO PLEDGEE
UNDER THE EXISTING LOAN AGREEMENT, THE EXISTING
SECURITY AGREEMENT OR THE OTHER
EXISTING
FINANCING AGREEMENTS, TOGETHER WITH ALL INTEREST ACCRUED AND ACCRUING
THEREON, AND ALL FEES, COSTS, EXPENSES AND OTHER CHARGES RELATING THERETO, ALL
OF WHICH ARE UNCONDITIONALLY OWING BY PLEDGOR TO PLEDGEE WITHOUT OFFSET,
DEFENSE, OR COUNTERCLAIM OF ANY KIND, NATURE OR DESCRIPTION WHATSOEVER. PLEDGOR
HEREBY RATIFIES, ASSENTS, ADOPTS AND AGREES TO PAY ALL OF THE OBLIGATIONS
ARISING BEFORE, ON OR AFTER THE DATE HEREOF.
(B)
PLEDGOR HEREBY ACKNOWLEDGES, CONFIRMS AND AGREES THAT PLEDGEE HAS
AND SHALL CONTINUE TO HAVE, FOR ITSELF AND THE BENEFIT OF LENDERS, VALID,
ENFORCEABLE AND PERFECTED FIRST PRIORITY SECURITY INTERESTS IN AND LIENS UPON
ALL OF THE COLLATERAL HERETOFORE GRANTED TO PLEDGEE PURSUANT TO THE EXISTING
SECURITY AGREEMENT TO SECURE ALL OF THE OBLIGATIONS SUBJECT