from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by the Administrative Agent, such Issuing Bank or such Lender or
Affiliate (including by branches and agencies of the Administrative Agent, such
Issuing Bank or such Lender, wherever located) to or for the credit or the
account of the Borrower or any Loan Guarantor against any of and all the Secured
Obligations held by the Administrative Agent, such Issuing Bank or such Lender
or Affiliate, irrespective of whether or not the Administrative Agent, such
Issuing Bank or such Lender or Affiliate shall have made any demand under the
Loan Documents and although such obligations may be unmatured.
Any applicable
Lender, Issuing Bank or Affiliate shall promptly notify the Borrower and the
Administrative Agent of such set-off or application; provided that any failure
to give or any delay in giving such notice shall not affect the validity of any
such set-off or application under this Section.
The rights of each Lender, each
Issuing Bank, the Administrative Agent and Affiliate under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender, Issuing Bank, Administrative Agent or Affiliate may have.
Section 9.10.
Governing Law; Jurisdiction; Consent to Service of
Process.
(a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN AS EXPRESSLY SET FORTH IN
170
THE OTHER LOAN DOCUMENTS), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR
OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF
THE STATE OF NEW YORK; PROVIDED THAT NOTWITHSTANDING THE FOREGOING AND THE
GOVERNING LAW PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS IT IS
UNDERSTOOD AND AGREED (A)(I) THAT THE INTERPRETATION OF THE DEFINITION OF
"MATERIAL ADVERSE EFFECT" (AS DEFINED IN THE ACQUISITION AGREEMENT) (AND WHETHER
OR NOT A MATERIAL ADVERSE EFFECT HAS OCCURRED ON THE CLOSING DATE), (II) THE
DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT
REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF HOLDINGS, THE
BORROWER OR ANY OF THEIR APPLICABLE AFFILIATES HAS THE RIGHT TO TERMINATE ITS OR
THEIR OBLIGATIONS UNDER THE ACQUISITION AGREEMENT IN ACCORDANCE WITH
SECTION 8.1(B) OF THE ACQUISITION AGREEMENT OR TO DECLINE TO CONSUMMATE THE
ACQUISITION IN ACCORDANCE WITH SECTION 6.2(A) OF THE ACQUISITION AGREEMENT AND
(III) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN
ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT AND, IN ANY CASE, CLAIMS
OR DISPUTES ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR ANY
ASPECT