hereby designates Aequitas Capital Management, Inc.
("Aequitas") as Junior Agent under this Agreement (including for purposes of
receiving notices on behalf of each Junior Creditor), and agrees that Aequitas's
rights, responsibilities and immunities as Junior Agent shall be as set forth in
Annex B to the Subordinated Debenture Security Agreement.
21.
CONSENT TO JURISDICTION; SERVICE OF PROCESS; NO JURY TRIAL.
(a)
EACH PARTY HERETO CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN NEW YORK, NEW YORK AND WAIVES ANY OBJECTION BASED UPON
FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER. NOTHING IN THIS SECTION WILL AFFECT THE RIGHT OF SENIOR CREDITOR TO
BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY HERETO OR ITS PROPERTY IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING COMMENCED BY ANY
DEBTOR OR ANY JUNIOR CREDITOR AGAINST SENIOR CREDITOR OR ANY OTHER HOLDER OF ANY
SENIOR DEBT INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT
OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A
UNITED STATES FEDERAL COURT OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW
YORK.
(b)
EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY HERETO THAT IT
HAS DISCUSSED THIS AGREEMENT WITH COUNSEL OF ITS CHOICE AND IS FULLY AWARE OF
THE LEGAL CONSEQUENCES AND EFFECTS HEREOF AND HAS KNOWINGLY AGREED TO THE
PROVISIONS HEREOF.
(c)
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING (i) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN
CONNECTION WITH THIS AGREEMENT, OR (ii) ARISING FROM ANY DISPUTE OR CONTROVERSY
IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
22.
ARM'S LENGTH AGREEMENT. EACH OF THE PARTIES TO THIS AGREEMENT
AGREES AND ACKNOWLEDGES THAT THIS AGREEMENT HAS BEEN NEGOTIATED IN GOOD FAITH,
AT ARM'S LENGTH, AND NOT BY ANY MEANS FORBIDDEN BY LAW.
21
23.
INJUNCTIVE RELIEF. EACH JUNIOR CREDITOR AND EACH DEBTOR
ACKNOWLEDGES AND AGREES THAT ITS COVENANTS AND OBLIGATIONS UNDER THIS AGREEMENT
AND THE OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS EXECUTED IN CONNECTION
HEREWITH ARE INTEGRAL TO SENIOR CREDITOR'S REALIZATION OF ITS RIGHTS AGAINST,
AND THE VALUE OF ITS INTEREST IN, THE ASSETS OF DEBTORS AND THEIR AFFILIATES,
THAT A BREACH OF ANY OF THE COVENANTS AND OBLIGATIONS OF SUCH JUNIOR CREDITOR,
SUCH DEBTOR HEREUNDER OR UNDER THE OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS
EXECUTED IN CONNECTION HEREWITH WILL ENTITLE SENIOR CREDITOR TO INJUNCTIVE
RELIEF AND SPECIFIC PERFORMANCE WITHOUT THE NECESSITY OF PROVING IRREPARABLE
INJURY TO SENIOR CREDITOR OR THAT SENIOR CREDITOR DOES NOT HAVE AN ADEQUATE
REMEDY AT LAW IN RESPECT OF SUCH BREACH (EACH OF WHICH ELEMENTS SUCH JUNIOR
CREDITOR, SUCH DEBTOR ADMITS EXIST) AND, AS A CONSEQUENCE, SUCH JUNIOR CREDITOR,
SUCH DEBTOR AGREES THAT EACH AND EVERY COVENANT AND OBLIGATION APPLICABLE TO IT
AND CONTAINED IN THIS AGREEMENT OR THE OTHER DOCUMENTS, INSTRUMENTS AND