AT THE DEFAULT RATE FROM THE DATE ADVANCED UNTIL THE
DATE REPAID, AND BE SECURED BY ALL COLLATERAL.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1.
SURVIVAL.
THIS AGREEMENT AND ALL COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES MADE HEREIN AND IN THE CERTIFICATES DELIVERED
PURSUANT HERETO SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
MAKING BY THE INITIAL LENDER OF THE LOAN HEREUNDER AND THE EXECUTION AND
DELIVERY BY BORROWER TO THE INITIAL LENDER OF THE LOAN DOCUMENTS, AND SHALL
CONTINUE IN FULL FORCE AND EFFECT SO LONG AS ANY PORTION OF THE INDEBTEDNESS IS
OUTSTANDING AND UNPAID. WHENEVER IN THIS AGREEMENT ANY OF THE PARTIES HERETO IS
REFERRED TO, SUCH REFERENCE SHALL BE DEEMED TO INCLUDE THE SUCCESSORS AND
ASSIGNS OF SUCH PARTY. ALL COVENANTS, PROMISES AND AGREEMENTS IN THIS AGREEMENT
CONTAINED, BY OR ON BEHALF OF BORROWER, SHALL INURE TO THE BENEFIT OF THE
RESPECTIVE SUCCESSORS AND ASSIGNS OF AGENT AND EACH LENDER. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT, EXPRESS OR IMPLIED, SHALL GIVE TO ANY
106
PERSON OTHER THAN THE PARTIES AND THE HOLDER OF THE NOTE AND THE OTHER LOAN
DOCUMENTS, AND THEIR LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, ANY BENEFIT
OR ANY LEGAL OR EQUITABLE RIGHT, REMEDY OR CLAIM HEREUNDER.
SECTION 8.2.
AGENT'S DISCRETION.
WHENEVER PURSUANT TO THIS
AGREEMENT, AGENT EXERCISES ANY RIGHT GIVEN TO IT TO APPROVE OR DISAPPROVE, OR
ANY ARRANGEMENT OR TERM IS TO BE SATISFACTORY TO AGENT, THE DECISION OF AGENT TO
APPROVE OR DISAPPROVE OR TO DECIDE WHETHER ARRANGEMENTS OR TERMS ARE
SATISFACTORY OR NOT SATISFACTORY SHALL (EXCEPT AS IS OTHERWISE SPECIFICALLY
HEREIN PROVIDED) BE IN THE SOLE DISCRETION OF AGENT AND SHALL BE FINAL AND
CONCLUSIVE.
SECTION 8.3.
GOVERNING LAW.
(A)
THIS AGREEMENT WAS NEGOTIATED IN NEW YORK AND MADE BY THE INITIAL
LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF
THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM NEW YORK, WHICH STATE THE
PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS (INCLUDING, WITHOUT
LIMITATION, MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE, AND MAXIMUM
PERMISSIBLE RATES OF INTEREST), THIS AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE
AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA.
(B)
ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE LENDERS OR
BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE INSTITUTED IN ANY
FEDERAL OR STATE COURT IN NEW YORK, NEW YORK. BORROWER HEREBY (I) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND
(II) IRREVOCABLY SUBMITS TO THE JURISDICTION