the affected Borrower
after any such set-off and application made by Lender or such Indemnified
Person, provided that the failure to give such notice shall not affect the
validity of such set-off and application. If an amount or obligation is
unascertained, Lender may in good faith estimate that obligation and set-off in
respect of the estimate, subject to the relevant Party accounting to the other
Party when the amount or obligation is ascertained. Nothing in this
Section 17.20 shall be effective to create a charge or other security interest.
This Section 17.20 shall be without prejudice and in addition to any right of
set-off, combination of accounts, lien or other rights to which any Party is at
any time otherwise entitled.
17.21 HEADINGS.
All article, section or other headings appearing in this Agreement and any of
the other Loan Documents are for convenience of reference only and shall be
disregarded in construing this Agreement and any of the other Loan Documents.
17.22 SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY.
If Borrower consists of more than one Person, the obligations and liabilities of
each such Person hereunder shall be joint and several. Except as otherwise
expressly provided under the terms and conditions of this Agreement, the terms,
covenants, and conditions contained herein and in the other Loan Documents shall
be binding upon and inure to the benefit of the heirs, successors and assigns of
the parties hereto and thereto.
17.23 GOVERNING LAW; JURISDICTION.
(a)
THIS AGREEMENT AND THE LOAN, AS A WHOLE, WAS NEGOTIATED IN THE STATE OF NEW
YORK, THE LENDERS HAVE SUBSTANTIAL BUSINESS OPERATIONS IN THE STATE OF NEW YORK
AND THE LOAN DOCUMENTS WERE EXECUTED IN THE STATE OF NEW YORK, WHICH STATE THE
PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE
73
OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL
TIMES THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS
AND SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE
IN WHICH THE APPLICABLE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW
YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN
DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE
FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS