ON THE GROUNDS OF FORUM NON
CONVENIENS, OR BASED ON UPON 28 U.S.C. § 1404, WHICH IT OR HE MAY NOW OR
HEREAFTER HAVE TO THE BRINGING AND ADJUDICATION OF ANY SUCH ACTION, SUIT OR
PROCEEDING IN ANY OF THE AFOREMENTIONED COURTS AND AGREES TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. EACH PARTY
HERETO EACH HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY
AMENDMENT, WAIVER, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN
THE FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH, AND AGREES THAT ANY SUCH
ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
14
(B)
EACH SUBORDINATED CREDITOR HEREBY AGREES THAT PROCESS MAY BE
SERVED ON HIM BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESSES
PERTAINING TO HIM AS SPECIFIED IN SECTION 8. ANY AND ALL SERVICE OF PROCESS AND
ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE
AGAINST SUCH SUBORDINATED CREDITOR IF GIVEN BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED
RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE.
21.
EFFECT OF AMENDMENT AND RESTATEMENT. UPON THE CLOSING DATE: (A) ALL
TERMS AND CONDITIONS OF THE EXISTING SUBORDINATION AGREEMENT, AS AMENDED BY THIS
AGREEMENT, SHALL BE AND REMAIN IN FULL FORCE AND EFFECT, AS SO AMENDED, AND
SHALL CONSTITUTE AND CONTINUE TO BE THE LEGAL, VALID, BINDING AND ENFORCEABLE
OBLIGATIONS OF EACH SUBORDINATED CREDITOR AND OF THE SENIOR AGENT AND SENIOR
LENDERS; (B) THE TERMS AND CONDITIONS OF THE EXISTING SUBORDINATION AGREEMENT
SHALL BE AMENDED AS SET FORTH HEREIN AND, AS SO AMENDED, THE EXISTING
SUBORDINATION AGREEMENT SHALL BE RESTATED IN ITS ENTIRETY, BUT SHALL BE AMENDED
ONLY WITH RESPECT TO THE RIGHTS, DUTIES AND OBLIGATIONS AMONG EACH SUBORDINATED
CREDITOR, THE SENIOR LENDERS AND THE SENIOR AGENT ACCRUING FROM AND AFTER THE
DATE HEREOF; (C) THIS AGREEMENT SHALL NOT IN ANY WAY RELEASE OR IMPAIR THE
RIGHTS, DUTIES OR OBLIGATIONS CREATED PURSUANT TO THE EXISTING SUBORDINATION
AGREEMENT, EXCEPT AS EXPRESSLY MODIFIED HEREBY, AND ALL OF SUCH RIGHTS, DUTIES
AND OBLIGATIONS ARE ASSUMED, RATIFIED AND AFFIRMED BY EACH SUBORDINATED
CREDITOR; (D) THE AMENDMENT AND RESTATEMENT CONTAINED HEREIN SHALL NOT, IN ANY
MANNER, BE CONSTRUED TO IMPAIR, LIMIT, CANCEL OR EXTINGUISH THE OBLIGATIONS OF
ANY SUBORDINATED CREDITOR EVIDENCED BY OR ARISING UNDER THE EXISTING
SUBORDINATION AGREEMENT; (E) THE EXECUTION, DELIVERY AND EFFECTIVENESS OF THIS
AGREEMENT SHALL NOT OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY OF SENIOR
AGENT OR THE SENIOR LENDERS UNDER THE EXISTING SUBORDINATION AGREEMENT, NOR
CONSTITUTE A WAIVER OF ANY COVENANT, AGREEMENT OR OBLIGATION UNDER THE EXISTING
SUBORDINATION AGREEMENT, IN EACH CASE AS IN EFFECT IMMEDIATELY PRIOR TO THE
EFFECTIVENESS OF THIS AGREEMENT; AND (F) ANY AND ALL REFERENCES IN THE SENIOR
DEBT DOCUMENTS OR SUBORDINATED DEBT DOCUMENTS TO THE EXISTING SUBORDINATION
AGREEMENT SHALL, WITHOUT FURTHER