the same effect as if the
signatures thereto were upon the same instrument. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. Each party hereto shall
deliver to each other party hereto a manually executed counterpart of its
signature page within five (5) days after delivering its signature page by
facsimile transmission. A set of the copies of this Agreement signed by all the
parties hereto shall be lodged with each Borrower and Lender.
9.20.
SUBMISSION AND CONSENT TO JURISDICTION AND CHOICE OF LAW. TO INDUCE
LENDER TO ACCEPT ANY RESTRUCTURING DOCUMENTS, EACH BORROWER AND EACH OTHER LOAN
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A)
SUBMITS ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO ANY RESTRUCTURING DOCUMENT, OR FOR THE RECOGNITION AND ENFORCEMENT
OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK AND ANY FEDERAL DISTRICT COURT IN NEW YORK.
(B)
CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREINAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME.
70
(C)
AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO LOAN PARTY AT ITS
ADDRESS SET FORTH IN SECTION 9.18 OR AT SUCH OTHER ADDRESS OF WHICH IBM CREDIT
SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(D)
AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE
OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE
IN ANY OTHER JURISDICTION.
(E)
AGREES THAT THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF NEW YORK GENERAL OBLIGATIONS LAW) OF THE STATE OF NEW YORK.
9.21.
JURY TRIAL WAIVER. EACH OF LENDER, BORROWERS AND EACH OTHER LOAN PARTY
HERETO HEREBY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING (INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH ANY LENDER,
BORROWER OR SUCH OTHER LOAN PARTY ARE PARTIES AS TO ALL MATTERS ARISING DIRECTLY
OR INDIRECTLY OUT OF THIS AGREEMENT OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT
EXECUTED IN CONNECTION HEREWITH.
9.22.
Limitation of Liability. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by Wilmington
Trust Company, not individually or personally but solely as trustee of the
Tranche A Borrower, in the exercise of the powers and authority conferred and
vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of Tranche A Borrower is made and intended not as
personal representations,