no Person other
than the Administrative Agent acting on behalf of the Secured Lenders shall have
standing to require satisfaction of such conditions in accordance with their
terms or be entitled to assume that the Secured Lenders will refuse to make
Advances in the absence of strict compliance with any or all thereof and no
Person (other than the Secured Lenders) shall, under any circumstances, be
deemed to be a beneficiary of such conditions, any or all of which may be freely
waived in whole or in part by the Administrative Agent at any time if in the
sole discretion of the Administrative Agent, it deems advisable to do so. The
Secured Lenders' obligations to make Advances, subject to the terms and
conditions of this Agreement, is solely for the benefit of Borrower and no other
Person shall be deemed to be a beneficiary of such obligation nor entitled to
require any Advance hereunder.
83
SECTION 14.10 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (AND, FOR PURPOSES OF DETERMINING THE HIGHEST
LAWFUL RATE, APPLICABLE FEDERAL LAW IF THE APPLICATION OF FEDERAL LAW RESULTS IN
A HIGHER RATE OF INTEREST) WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS
PROVISIONS.
(b) THE BORROWER CONSENTS TO AND SUBMITS TO IN PERSONAM JURISDICTION AND VENUE
IN THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND IN THE FEDERAL DISTRICT COURTS
WHICH ARE LOCATED IN THE CITY OF NEW YORK. THE BORROWER ASSERTS THAT IT HAS
PURPOSEFULLY AVAILED ITSELF OF THE BENEFITS OF THE LAWS OF THE STATE OF NEW YORK
AND WAIVES ANY OBJECTION TO IN PERSONAM JURISDICTION ON THE GROUNDS OF MINIMUM
CONTACTS, WAIVES ANY OBJECTION TO VENUE, AND WAIVES ANY PLEA OF FORUM NON
CONVENIENS. THIS CONSENT TO AND SUBMISSION TO JURISDICTION IS WITH REGARD TO ANY
ACTION RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER THE BORROWER'S ACTIONS
TOOK PLACE IN THE STATE OR ELSEWHERE IN THE UNITED STATES. THIS SUBMISSION TO
JURISDICTION IS NONEXCLUSIVE, AND DOES NOT PRECLUDE THE SECURED LENDERS FROM
OBTAINING JURISDICTION OVER THE BORROWER IN ANY COURT OTHERWISE HAVING
JURISDICTION.
(c) THE BORROWER AND THE SECURED LENDERS AGREE TO WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT. IT IS HEREBY ACKNOWLEDGED THAT THE WAIVER OF A JURY TRIAL
IS A MATERIAL INDUCEMENT FOR THE BORROWER AND THE SECURED LENDERS TO ENTER INTO
THIS AGREEMENT AND THAT THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
BORROWER AND THE SECURED LENDERS IS MADE IN RELIANCE UPON SUCH WAIVER. THE
BORROWER AND THE SECURED LENDERS FURTHER WARRANT AND REPRESENT THAT SUCH WAIVER
HAS BEEN KNOWINGLY AND VOLUNTARILY MADE BY EACH PARTY HERETO, FOLLOWING
CONSULTATION WITH THEIR RESPECTIVE LEGAL COUNSEL.
(d) The Borrower acknowledges that it has had the opportunity to obtain the
advice of experienced counsel of its own choosing