shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 12.3 Headings. Headings and captions used in this Agreement and all
other DIP Loan Documents (including the Exhibits, Schedules and Annexes hereto
and thereto, if any) are included for convenience of reference only and shall
not be given any substantive effect.
Section 12.4 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND EACH OTHER DIP LOAN DOCUMENT, AND ALL MATTERS RELATING
HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT
LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE BANKRUPTCY COURT SHALL
HAVE EXCLUSIVE JURISDICTION (OR IF THE BANKRUPTCY COURT DOES NOT HAVE OR DOES
NOT EXERCISE JURISDICTION, ANY FEDERAL OR STATE COURT OF COMPETENT JURISDICTION
LOCATED IN THE BOROUGH OF MANHATTAN IN THE STATE OF NEW YORK) TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY PARTIES HERETO PERTAINING
TO THE AGREEMENT OR ANY OF THE OTHER DIP LOAN DOCUMENTS OR TO ANY MATTER ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY
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OF THE OTHER DIP LOAN DOCUMENTS; PROVIDED THAT EACH PARTY ACKNOWLEDGES THAT ANY
APPEALS FROM THE BANKRUPTCY COURT MAY HAVE TO BE HEARD BY A COURT OTHER THAN THE
BANKRUPTCY COURT; PROVIDED, FURTHER, THAT NOTHING IN THE AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE THE DIP ADMINISTRATIVE AGENT OR ANY DIP LENDER
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
REALIZE ON THE DIP COLLATERAL OR ANY OTHER SECURITY FOR THE DIP OBLIGATIONS, OR
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE DIP ADMINISTRATIVE
AGENT OR ANY DIP LENDER. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS, AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT.
Section 12.5 WAIVER OF JURY TRIAL. THE BORROWER, DIP ADMINISTRATIVE AGENT AND
EACH DIP LENDER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
EACH OTHER DIP LOAN DOCUMENT, AND ALL MATTERS RELATING HERETO OR THERETO, AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY. THE BORROWER, DIP ADMINISTRATIVE AGENT AND EACH DIP LENDER
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS RELIED ON