COMPANY ACKNOWLEDGES AND AGREES THAT THE VALUE OF ANY
PAYMENTS OR DISTRIBUTIONS IN CASH, PROPERTY OR OTHER ASSETS RECEIVED BY THE
SECOND LIEN TRUSTEE OR THE SECOND LIEN CLAIMHOLDERS THAT ARE PAID OVER TO THE
FIRST LIEN AGENT OR THE FIRST LIEN CLAIMHOLDERS PURSUANT TO THIS AGREEMENT SHALL
NOT REDUCE ANY OF THE SECOND LIEN OBLIGATIONS.
8.6
APPLICATION OF PAYMENTS.
ALL PAYMENTS RECEIVED BY THE FIRST LIEN
AGENT OR THE FIRST LIEN CLAIMHOLDERS MAY BE APPLIED, REVERSED AND REAPPLIED, IN
WHOLE OR IN PART, TO SUCH PART OF THE FIRST LIEN OBLIGATIONS PROVIDED FOR IN THE
FIRST LIEN LOAN DOCUMENTS.
THE SECOND LIEN TRUSTEE, ON BEHALF OF ITSELF AND THE
SECOND LIEN CLAIMHOLDERS, AGREES TO ANY EXTENSION OR POSTPONEMENT OF THE TIME OF
PAYMENT, SUBJECT TO SECTION 5.3(A)(III), OF THE FIRST LIEN OBLIGATIONS OR ANY
PART THEREOF AND TO ANY OTHER INDULGENCE WITH RESPECT THERETO, TO ANY
SUBSTITUTION, EXCHANGE OR RELEASE OF ANY SECURITY WHICH MAY AT ANY TIME SECURE
ANY PART OF THE FIRST LIEN OBLIGATIONS AND TO THE ADDITION OR RELEASE OF ANY
OTHER PERSON PRIMARILY OR SECONDARILY LIABLE THEREFOR.
8.7
SUBMISSION TO JURISDICTION; WAIVERS.
(A)
ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND
CITY OF NEW YORK.
BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:
(I)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II)
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
31
(III)
AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 8.8; AND
(IV)
AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH
PROCEED­ING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT.
(B)
EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
HEREUNDER.
THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH PARTY HERETO ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATION­SHIP,
THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND
THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.
EACH PARTY HERETO FURTHER WAR­RANTS AND REPRESENTS THAT IT HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
THIS WAIVER IS
IRREVOCABLE; MEANING THAT