and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Lender or
such LC Issuer (including, without limitation, by branches, agencies and
Affiliates of such Lender or LC Issuer wherever located) to or for the credit or
the account of any Guarantor against and on account of the Obligations and
liabilities of any Guarantor to such Lender or LC Issuer under this Agreement,
including, without limitation, all claims of any nature or description arising
out of or connected with this Agreement, irrespective of whether or not such
Lender or LC Issuer shall have made any demand under this Agreement and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. The rights of each Lender under this Section 5.08 are in addition to
other rights and remedies (including other rights of set-off) which such Lender
may have. Each Lender and LC Issuer (on behalf of itself or its applicable
Affiliate) agrees to promptly notify the applicable Guarantor after any such set
off and application, provided, however, that the failure to give such notice
shall not affect the validity of such set off and application.
9
SECTION 5.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
(b) EACH OF THE GUARANTORS HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW
YORK COUNTY IN ANY LITIGATION OR OTHER PROCEEDING BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
SECURED CREDITORS OR THE CREDIT PARTIES IN CONNECTION HEREWITH OR THEREWITH;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT'S OPTION, IN THE COURTS
OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND;
PROVIDED, FURTHER, THAT NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY PARTY HERETO
TO BRING PROCEEDINGS AGAINST ANY OTHER PARTY HERETO IN THE COURTS OF ANY OTHER
JURISDICTION.
(c) EACH OF THE GUARANTORS HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 11.05 OF
THE CREDIT AGREEMENT. EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO IN CLAUSE (a) ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
PARTY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY