written consent of the Administrative Agent, the Administrative
Agent and each Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable Requirements of Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations (in any currency) at any time
owing by the Administrative Agent or such Lender (including by branches and
agencies of the Administrative Agent or such Lender, wherever located) to or for
the credit or the account of the Borrower or any Loan Party against any of and
all the Secured Obligations held by the Administrative Agent or such Lender,
irrespective of whether or not the Administrative Agent or such Lender shall
have made any demand under the Loan Documents and although such obligations may
be contingent or unmatured or are owed to a branch or office of such Lender
different than the branch or office holding such deposit or obligation on such
Indebtedness.
Any applicable Lender shall promptly notify the Borrower and the
Administrative Agent of such set-off or application; provided that any failure
to give or any delay in giving such notice shall not affect the validity of any
such set-off or application under this Section.
The rights of each Lender and
the Administrative Agent under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender or the
Administrative Agent may have.
Section 9.10
Governing Law; Jurisdiction; Consent to Service of
Process.
(a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT) AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT), WHETHER IN TORT,
CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED,
THAT (I) THE INTERPRETATION OF THE DEFINITION OF "MATERIAL ADVERSE EFFECT" AS
DEFINED IN THE ACQUISITION AGREEMENT AND THE DETERMINATION OF WHETHER A MATERIAL
ADVERSE EFFECT (AS DEFINED IN THE ACQUISITION AGREEMENT) HAS OCCURRED, (II) THE
DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT
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REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF MERGER SUB OR
ITS APPLICABLE AFFILIATE HAS A RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE
ACQUISITION AGREEMENT OR DECLINE TO CONSUMMATE THE ACQUISITION AND (III) THE
DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH
THE TERMS OF THE ACQUISITION AGREEMENT AND, IN ANY CASE, ANY CLAIM OR DISPUTE
ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR ANY ASPECT THEREOF,
SHALL IN EACH CASE BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF DELAWARE REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
(b)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY