may be executed in several
counterparts, and by each Party on separate counterparts, each of which and any
photocopies, facsimile copies and other electronic methods of transmission
thereof shall be deemed an original, but all of which together shall constitute
one and the same agreement.
8.7 Severability. If any provision of this Agreement or any of the other
Security Documents shall be invalid, illegal or unenforceable in any respect
under any law, the validity, legality and enforceability of the remaining
provisions hereof or thereof shall not in any way be affected or impaired
thereby. The parties hereto shall endeavor in good faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provision.
8.8 Entire Agreement. Subject to the Subordination and Intercreditor Agreement,
this Agreement contains the entire understanding of the parties hereto with
respect to the matters covered hereby and supersedes any and all other written
and oral communications, negotiations, commitments and writings with respect
thereto. All Exhibits, Schedules and Annexes referred to herein are incorporated
in this Agreement by reference and constitute a part of this Agreement. If any
provision contained in this Agreement conflicts with any provision of the
Indenture, then with regard to such conflicting provisions, the Indenture shall
govern and control.
8.9 Successors; Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, except, notwithstanding anything to the contrary in this Agreement or
any other Security Document, that the Company may not assign their rights or
obligations hereunder and any such purported, prohibited or attempted assignment
shall be void ab initio.
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8.10 Applicable Law. THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT
OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO
ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND
ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR THEREUNDER OR RELATED
HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8.11 Consent to Jurisdiction; Venue.
(a) THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COMMERCIAL DIVISION NEW YORK STATE SUPREME COURT AND THE
FEDERAL COURTS, IN EACH CASE, SITTING IN THE CITY OF NEW YORK, BOROUGH OF
MANHATTAN (AND, IN EACH CASE, THE APPLICABLE STATE AND FEDERAL APPEALS COURTS
SITTING IN THE CITY OF NEW YORK OR, IF NOT AVAILABLE OR APPLICABLE, THE STATE OF
NEW YORK), IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY