479-6275
28.
Governing Law, Jurisdiction and Waiver of Jury
Trial.
(a)
THIS AGREEMENT AND THE ANCILLARY
AGREEMENTS SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH STATE.
(b)
EACH PARTY HERETO IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE UNTIED STATES BANKRUPTCY COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT WITHOUT PREJUDICE TO ANY PARTY'S RIGHT TO ASSERT
THAT THE SUBJECT MATTER OF ANY SUCH DISPUTE IS NOT A CORE PROCEEDING, IN WHICH
CASE THE PARTIES HERETO ACKNOWLEDGE THAT THE JURISDICTION OF SUCH DISPUTE MAY BE
MAINTAINED IN ANY NEW YORK FEDERAL OR STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN, CITY OF NEW YORK; PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE ACCESS CAPITAL FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY
25
OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR
ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF ACCESS CAPITAL.
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 HERETO HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS.
EACH COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO COMPANY AGENT AT THE ADDRESS SET FORTH IN SECTION
27 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
COMPANY AGENT'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE
U.S. MAILS, PROPER POSTAGE PREPAID.
(c)
THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT,
TORT, OR OTHERWISE BETWEEN ACCESS CAPITAL AND ANY COMPANY ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR THE
TRANSACTIONS RELATED THERETO.
29.
Company Agency Provisions.
(a)
Each Company hereby irrevocably
designates Company Agent to be its attorney and agent and in such capacity to
borrow, sign and endorse notes, and execute and deliver all instruments,
documents, writings and further assurances now or hereafter required hereunder,
on behalf of such Company or Companies, and hereby authorizes Access Capital to
pay over or credit all loan proceeds hereunder in accordance with the request of
Company Agent.
(b)
The handling of this credit facility
as a co-borrowing facility