insolvency, bankruptcy, dissolution, liquidation or reorganization of
OpBiz, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee, custodian, or similar officer, for any Obligor or
any substantial part of its property, or otherwise, all as though such payments
had not been made.
No action which the Mezzanine Investors or any Obligor may
take or refrain from taking with respect to the Guaranteed Obligations,
including any amendments thereto, shall affect the provisions of this Agreement
or the obligations of the PH Parties hereunder.
Any waiver or amendment
hereunder must be evidenced by a signed writing of the party to be bound
thereby, and shall only be
9
effective in the specific instance.
This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its conflict of laws provisions.
The headings in this Agreement are for
convenience of reference only, and shall not alter or otherwise affect the
meaning hereof.
4.
REPRESENTATIONS AND WARRANTIES.
EACH PH PARTY REPRESENTS AND
WARRANTS TO THE MEZZANINE INVESTORS THAT, AS OF THE DATE HEREOF, THE ONLY
LICENSING OBLIGATIONS OWED OR OWING TO IT IS THAT WHICH IS SET FORTH IN THE
LICENSING AGREEMENT.
SUCH PH PARTY FURTHER REPRESENTS AND WARRANTS TO THE
MEZZANINE INVESTORS THAT (I) IT HAS FULL RIGHT, POWER AND AUTHORITY TO EXECUTE
AND DELIVER THIS AGREEMENT AND, TO THE EXTENT THE SUCH HOLDER IS AN AGENT OR
TRUSTEE FOR OTHER PARTIES, THAT THIS AGREEMENT SHALL FULLY BIND ALL SUCH OTHER
PARTIES, (II) THIS AGREEMENT DOES NOT CONTRAVENE (A) THE ORGANIZATIONAL
DOCUMENTS OF SUCH HOLDER, TO THE EXTENT APPLICABLE, (B) ANY CONTRACTUAL
RESTRICTION IN ANY AGREEMENT THAT IS MATERIAL TO THE SUCH HOLDER, (C) ANY COURT
DECREE OR ORDER BINDING ON OR AFFECTING SUCH HOLDER, OR (D) ANY LAW OR
GOVERNMENTAL REGULATION BINDING ON OR AFFECTING SUCH HOLDER, (III) THIS
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT DOES NOT, AND WILL NOT,
RESULT IN, OR REQUIRE THE CREATION OR IMPOSITION OF, ANY LIEN ON THE ASSETS OF
SUCH HOLDER, AND (IV) THIS AGREEMENT CONSTITUTES THE LEGAL, VALID AND BINDING
OBLIGATIONS OF SUCH HOLDER, ENFORCEABLE AGAINST SUCH HOLDER IN ACCORDANCE WITH
ITS TERMS (EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION OR SIMILAR LAWS AFFECTING CREDITORS'
RIGHTS GENERALLY AND BY PRINCIPLES OF EQUITY).
5.
PROCEEDINGS.
ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST ANY
PH PARTY OR ANY OBLIGOR WITH RESPECT TO THIS OR ANY RELATED AGREEMENT MAY BE
BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE SUPREME COURT OF THE STATE
OF NEW YORK, NEW YORK COUNTY, OR THE FEDERAL DISTRICT COURT WITHIN THE SOUTHERN
DISTRICT OF NEW YORK.
BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PH
PARTY, EACH MEZZANINE INVESTOR AND EACH OBLIGOR ACCEPT FOR THEMSELVES AND IN
CONNECTION WITH THEIR PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE
BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH