in such state.
11.
Waiver of Certain Rights.
The Subordinated
Creditor expressly waives any and all rights of subrogation, reimbursement,
indemnity, exoneration or contribution or any other claim which the Subordinated
Creditor may now or hereafter have against the Debtor or any affiliate thereof
or against any property of the Debtor or any affiliate thereof arising from the
existence, performance or enforcement of the Subordinated Creditor's obligations
and liabilities under this Agreement until such time as the Senior Debt shall
have been paid in full.
12.
Jury Trial Waiver and Forum Consents.
EACH OF
THE SUBORDINATED CREDITOR, GE CAPITAL AND THE DEBTOR HEREBY WAIVES ANY RIGHT
SUCH PERSON MAY HAVE UNDER ANY APPLICABLE LAW TO A TRIAL BY JURY WITH RESPECT TO
ANY SUIT OR LEGAL ACTION WHICH MAY BE COMMENCED OR AGAINST SUCH PERSON
CONCERNING THE INTERPRETATION, CONSTRUCTION, VALIDITY, ENFORCEMENT OR
PERFORMANCE OF THIS AGREEMENT.
IN THE EVENT ANY SUCH SUIT OR LEGAL ACTION IS
COMMENCED BY GE CAPITAL, EACH OF THE SUBORDINATED CREDITOR AND THE DEBTOR HEREBY
EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF ANY STATE
OR FEDERAL COURT SITTING IN THE CITY AND STATE OF NEW YORK, WITH RESPECT TO SUCH
SUIT OR LEGAL ACTION AND FURTHER EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES
THAT VENUE IN ANY SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND FURTHER
EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE LAW OR IN EQUITY
TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS.
THE JURISDICTION AND
VENUE OF THE COURTS CONSENTED TO AND SUBMITTED TO AND AGREED UPON IN THIS
SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE JURISDICTION
AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
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7
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly signed,
sealed and delivered, all as of the day and year first above written.
[SUBORDINATED CREDITOR]
By:
Name:
Title:
(CORPORATE SEAL)
Address:
Attn:
Telecopy: (
)
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Its Duly Authorized Signatory
(CORPORATE SEAL)
Address:
2 Bethesda Metro Center,
Suite 600, Bethesda, MD 20814
Attn:
Account Manager
Telecopy:
301-347-3175
[DEBTOR]
, as Debtor
By:
Name:
Title:
(CORPORATE SEAL)
Address:
Attn:
Telecopy: (
)
SCHEDULE 1
Scheduled Principal and Interest Payments:
EXHIBIT O
SCHEDULE I
Borrowing Base Certificate
General Electric Capital Corporation
2 Bethesda Metro Center, Suite 600
Bethesda, MD 20814
Borrowing Base Availability @ 12/31/03:
Pursuant to the Amended and Restated
Credit Agreement dated as of April 23,
2004 among the undersigned as Borrower Representative, the other persons
designated therein as Borrowers, the persons designated therein as Credit
Parties, the other persons designated therein as Lenders and GENERAL ELECTRIC
CAPITAL CORPORATION as Agent and Lender (the "Credit Agreement"), the
undersigned certifies that as of the close of business on the date set forth
below, the Borrowing Base is computed as set forth below.
(a)
The undersigned