SHALL BE GOVERNED BY,
CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE
(INCLUDING GIVING EFFECT TO GENERAL OBLIGATIONS LAW SECTION 5-1401).
SECTION 12.10
JURISDICTION, JURY TRIAL WAIVER, ETC.
(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 COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK 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 SUCH COURTS ARE
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 11.2, SUCH SERVICE TO
BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
(B)
THE COMPANY HEREBY WAIVES ITS RIGHTS 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 INVESTMENT DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.
THE COMPANY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE PURCHASER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
PURCHASER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (II) ACKNOWLEDGES THAT THE PURCHASER HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT, AND THE OTHER INVESTMENT DOCUMENTS TO WHICH IT IS A PARTY BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
SECTION 12.11
SEVERABILITY.
IF ANY ONE OR MORE OF THE PROVISIONS
CONTAINED IN THIS AGREEMENT, OR THE APPLICATION THEREOF IN ANY CIRCUMSTANCE, IS
HELD INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT FOR ANY REASON, THE
VALIDITY, LEGALITY AND ENFORCEABILITY OF ANY SUCH PROVISION IN EVERY OTHER
RESPECT AND OF THE REMAINING PROVISIONS HEREOF SHALL NOT BE IN ANY WAY IMPAIRED,
UNLESS THE PROVISIONS HELD INVALID, ILLEGAL OR UNENFORCEABLE SHALL SUBSTANTIALLY
IMPAIR THE BENEFITS OF THE REMAINING PROVISIONS OF THIS AGREEMENT.
THE PARTIES
HERETO FURTHER AGREE TO REPLACE SUCH INVALID, ILLEGAL OR UNENFORCEABLE PROVISION
OF THIS AGREEMENT WITH A VALID, LEGAL AND ENFORCEABLE PROVISION
25
THAT WILL ACHIEVE, TO THE EXTENT POSSIBLE, THE ECONOMIC, BUSINESS AND OTHER
PURPOSES OF SUCH INVALID, ILLEGAL OR UNENFORCEABLE PROVISION.
SECTION 12.12
RULES OF CONSTRUCTION.
UNLESS THE CONTEXT OTHERWISE
REQUIRES, "OR" IS NOT EXCLUSIVE, AND REFERENCES TO SECTIONS OR SUBSECTIONS REFER
TO SECTIONS OR SUBSECTIONS OF THIS AGREEMENT.
SECTION 12.13
ENTIRE AGREEMENT.
THIS AGREEMENT, TOGETHER WITH THE
EXHIBITS AND SCHEDULES HERETO AND THE OTHER INVESTMENT DOCUMENTS, IS INTENDED BY
THE PARTIES AS A FINAL EXPRESSION OF THEIR AGREEMENT