Except as otherwise provided in this Agreement or
any of the other Letter of Credit Documents by specific reference to the
applicable provisions of this Agreement, if any provision contained in this
Agreement is in conflict with, or inconsistent with, any provision in any of
27
the other Letter of Credit Documents, the provision contained in this Agreement
shall govern and control.
11.8
Confidentiality.
Creditor agrees to use commercially reasonable
efforts (equivalent to the efforts Creditor applies to maintain as confidential
its own confidential information) to maintain as confidential all confidential
information provided to it by the Credit Parties and designated as confidential
for a period of three (3) years following the Termination Date, except that
Creditor may disclose such information (a) to Persons employed or engaged by
Creditor in evaluating, approving, structuring or administering the
Reimbursement Obligations and the Commitment; (b) to any bona fide participant
or potential participant that has agreed to comply with the covenant contained
in this Section 11.8 (and any such bona fide participant or potential
participant may disclose such information to Persons employed or engaged by them
as described in clause (a) above); (c) as required or requested by any
Governmental Authority or reasonably believed by Creditor to be compelled by any
court decree, subpoena or legal or administrative order or process; (d) as, on
the advice of Creditor's counsel, required by law; (e) in connection with the
exercise of any right or remedy under the Letter of Credit Documents or in
connection with any Litigation to which Creditor is a party, or (f) which ceases
to be confidential through no fault of Creditor.
11.9
GOVERNING LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LETTER OF CREDIT DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THE LETTER OF CREDIT DOCUMENTS AND THE
OBLIGATIONS 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
THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. DEBTOR
HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK
COUNTY, CITY OF NEW YORK, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE CREDIT PARTIES AND CREDITOR
PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LETTER OF CREDIT DOCUMENTS OR
TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
LETTER OF CREDIT DOCUMENTS, PROVIDED, THAT CREDITOR AND DEBTOR ACKNOWLEDGE THAT
ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
NEW YORK COUNTY, CITY OF NEW YORK, NEW YORK AND, PROVIDED, FURTHER NOTHING IN
THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE CREDITOR FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR