exercised in their sole discretion, to set off and to appropriate and to
apply any and all deposits (general or special, including indebtedness evidenced
by certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by Administrative Agent, such Lender,
such Participant or any affiliate of Administrative Agent or such Lender, to or
for the credit or the account of Borrower against and on account of any of the
Obligations, irrespective of whether or not any or all of the Loans and all
other Obligations have been declared to be, or have otherwise become, due and
payable as permitted by Section 11.2, and although such Obligations shall be
contingent or unmatured.
Section 12.5
Litigation; Jurisdiction; Other Matters; Waivers.
(a)
EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR
AMONG BORROWER, ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, ADMINISTRATIVE AGENT AND BORROWER HEREBY WAIVES ITS RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN
101
ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY
PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN
DOCUMENT OR THE FEE LETTER OR IN CONNECTION WITH ANY COLLATERAL OR ANY LIEN OR
BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR
AMONG BORROWER, ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF ANY KIND OR
NATURE.
(b)
EACH OF BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY AGREES THAT
THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE
OPTION OF ADMINISTRATIVE AGENT, ANY STATE COURT LOCATED IN NEW YORK CITY, NEW
YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN OR AMONG BORROWER, ADMINISTRATIVE AGENT OR ANY OF THE LENDERS,
PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE NOTES OR ANY
OTHER LOAN DOCUMENT OR THE FEE LETTER OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM OR THE COLLATERAL. BORROWER AND EACH OF THE LENDERS EXPRESSLY SUBMIT
AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS. BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS
AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT
SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT ITS ADDRESS FOR NOTICES
PROVIDED FOR HEREIN. SHOULD BORROWER FAIL TO APPEAR OR ANSWER ANY SUMMONS,
COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THIRTY (30) DAYS AFTER THE MAILING
THEREOF, BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE
ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS
OR PAPERS. EACH PARTY FURTHER WAIVES ANY