Creditor a statement of
indebtedness owing from Borrowers to the Senior Lender.
The Junior Creditor may
rely without further investigation upon any such statement.
SECTION 17.
SPECIFIC PERFORMANCE.
THE SENIOR LENDER IS HEREBY AUTHORIZED TO
DEMAND SPECIFIC PERFORMANCE OF THIS AGREEMENT AT ANY TIME WHEN THE JUNIOR
CREDITOR SHALL HAVE FAILED TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
AGREEMENT APPLICABLE TO IT.
THE JUNIOR CREDITOR HEREBY IRREVOCABLY W AWES ANY
DEFENSE BASED ON THE ADEQUACY OF A REMEDY AT LAW THAT MIGHT BE ASSERTED AS A BAR
TO SUCH REMEDY OF SPECIFIC PERFORMANCE.
SECTION 18.
GOVERNING LAW.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS AND DECISIONS (AS OPPOSED TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF CONNECTICUT.
SECTION 19.
SUBMISSION TO JURISDICTION.
ALL DISPUTES BETWEEN OR AMONG ANY OF
THE PARTIES HERETO, WHETHER SOUNDING IN CONTRACT, TORT OR EQUITY OR OTHERWISE,
SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS LOCATED IN THE STATE OF
CONNECTICUT AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE TAKEN; PROVIDED,
HOWEVER, THAT THE SENIOR LENDER SHALL HAVE THE RIGHT, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE JUNIOR CREDITOR ENFORCE THE
PROVISIONS HEREOF IN ANY OTHER COURT OF COMPETENT JURISDICTION OR VENUE.
EACH
OF THE JUNIOR CREDITOR,
AND EACH BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF ANY SUCH COURT IN WHICH THE SENIOR LENDER HAS COMMENCED A
PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON FORUM NON CONVENIENS.
SECTION 20.
JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO (I)
THIS AGREEMENT OR (II) ANY CONDUCT, ACT OR OMISSION OF THE JUNIOR CREDITOR, ANY
BORROWER, THE SENIOR LENDER OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
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EMPLOYEES, AGENTS, ATTORNEYS OR OTHER AFFILIATE, IN EACH CASE WHETHER SOUNDING
IN CONTRACT, TORT OR EQUITY OR OTHERWISE.
SECTION 21.
EFFECT OF THIS AGREEMENT.
THIS AGREEMENT HAS BEEN ENTERED INTO BY
THE JUNIOR CREDITOR AND SENIOR LENDER TO AMEND AND RESTATE THAT CERTAIN AMENDED
AND RESATED SENIOR SUBORDINATION AGREEMENT BY AND BETWEEN JUNIOR CREDITOR AND
SENIOR LENDER AND DATED FEBUARY 10, 2006 ("AMENDED AND RESATED SENIOR
SUBORDINATION AGREEMENT"), WHICH AMENDED AND RESTATED THAT CERTAIN SENIOR
SUBORDINATION AGREEMENT BY AND BETWEEN JUNIOR CREDITOR AND FLEET CAPITAL
CORPORATION NOW KNOWN AS BANK OF AMERICA, N.A. AND DATED AUGUST 25, 2005.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed by
its proper and duly authorized officer or general partner as of the date first
set forth above.
BANK OF AMERICA, N.A.,
successor to Fleet Capital Corporation
By:
Deirdre Z. Sikora