Invalidated Payments
. To the extent that the Senior Lender receives payments on, or proceeds of
Collateral for, the Senior Obligations which are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to Debtors, a trustee, receiver or any other party under any bankruptcy
law, state or federal law, common law, or equitable cause, then to the extent of
such payment or proceeds received, the Senior Obligations, or part thereof,
intended to be satisfied shall be revived and continue in full force and effect
as if such payments or proceeds had not been received by the Senior Lender.
12
25.
Specific Performance
. The Senior Lender is hereby authorized to demand specific performance of this
Agreement at any time when the Subordinated Lender shall have failed to comply
with any of the provisions of this Agreement applicable to the Subordinated
Lender whether or not the Debtors shall have complied with any of the provisions
hereof applicable to the Debtors, and the Subordinated Lender hereby irrevocably
waives any defense based on the adequacy of a remedy at law which might be
asserted as a bar to such remedy of specific performance.
26.
GOVERNING LAW: CONSENT TO JURISDICTION AND VENUE. THIS
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER 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 SUCH STATE, AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. EACH OF THE DEBTORS, THE SUBORDINATED
LENDER AND THE SENIOR LENDER HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG THE DEBTORS, THE
SUBORDINATED LENDER AND THE SENIOR LENDER PERTAINING TO THIS AGREEMENT OR TO ANY
MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE SENIOR LOAN
DOCUMENTS OR SUBORDINATED LOAN DOCUMENTS, PROVIDED, THAT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF NEW YORK AND, PROVIDED, FURTHER THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE SENIOR LENDER OR THE
SUBORDINATED LENDER (SUBJECT TO THE TERMS OF THIS AGREEMENT) FROM BRINGING SUIT
OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE SENIOR OBLIGATIONS, OR THE SUBORDINATED
OBLIGATIONS TO ENFORCE A JUDGEMENT OR OTHER COURT ORDER IN FAVOR OF THE SENIOR
LENDER. EACH OF THE DEBTORS AND THE SUBORDINATED LENDER EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH OF THE DEBTORS AND THE SUBORDINATED LENDER HEREBY WAIVES
ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS. EACH OF THE DEBTORS AND THE SUBORDINATED
LENDER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINTS AND OTHER
PROCESS ISSUED IN