effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
9.11
Severability.
In case any provision in or
obligation hereunder or any Revolving Loan Note or other Credit Document shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
9.12
Third Party Beneficiaries.
The Account Bank shall
be an express third party beneficiary of the provisions of Section 2.10.
9.13
Headings.
Section headings herein are included
herein for convenience of reference only and shall not constitute a part hereof
for any other purpose or be given any substantive effect.
9.14
APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5 1401 AND 5
1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THEREOF.
9.15
CONSENT TO JURISDICTION.
(A)
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE
PARTIES ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY
OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK.
BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH OF THE PARTIES, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY
71
(i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS, (ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS,
(iii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
THE BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 9.1 AND TO ANY
PROCESS AGENT APPOINTED IN ACCORDANCE WITH SUBPARAGRAPH (B) BELOW IS SUFFICIENT
TO CONFER PERSONAL JURISDICTION OVER THE SUCH PARTY IN ANY SUCH PROCEEDING IN
ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT AND (iv) AGREES THAT AGENTS AND THE LENDERS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
SUCH PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
(B)
THE BORROWER HEREBY AGREES THAT PROCESS MAY BE
SERVED ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESSES
PERTAINING TO IT AS SPECIFIED IN SECTION 9.1.
ANY AND ALL SERVICE OF PROCESS
AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE
AGAINST THE BORROWER, 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.
9.16
WAIVER OF JURY TRIAL.
THE BORROWER, EACH AGENT AND
THE LENDERS HEREBY AGREE TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION