LAW OF ANOTHER JURISDICTION.
8.12
Forum Selection; Consent to Jurisdiction; Waiver of Jury Trial.
(a)
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY
LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NOTES OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE
BROUGHT IN THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OR
ANY APPELLATE COURT FROM ANY THEREOF, AND HEREBY EXPRESSLY SUBMITS TO THE
PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND
EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT ANY SUCH COURT
IS AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 12.2 OF THE NOTE PURCHASE
AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
35
(b)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS
AGREEMENT HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR
ANY OF THE OTHER NOTE DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH GRANTOR (i)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY HOLDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT Collateral AGENT WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES
THAT Collateral AGENT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AND THE
OTHER NOTE DOCUMENTS TO WHICH IT IS PARTY BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS CONTAINED HEREIN.
8.13
Set-off. Each Grantor agrees that Collateral Agent and each
Purchaser have all rights of set-off, recoupment and bankers' lien provided by
applicable law, and in addition thereto, each Grantor agrees that at any time
any Event of Default exists, Collateral Agent and (with the written consent of
Collateral Agent) each Purchaser may apply to the payment of any Secured
Obligations, whether or not then due, any and all balances, credits, deposits,
accounts or moneys of such Grantor then or thereafter with Collateral Agent or
such Purchaser.
8.14
Acknowledgements. Each Grantor hereby acknowledges that:
(a)
it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Note Documents to which it is a party;
(b)
Neither Collateral Agent nor any Purchaser has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Note Documents, and the relationship between
the Grantors, on the one hand, and Collateral Agent and the Purchasers, on the
other hand, in connection herewith or therewith is that of debtor and creditor;
and
(c)
no