validity
thereof.
ANY AND ALL
RIGHTS TO REQUIRE A BANK TO EXERCISE ITS RIGHTS OR REMEDIES
WITH RESPECT TO ANY
OTHER COLLATERAL THAT SECURES THE OBLIGATIONS OF THE BORROWER
HEREUNDER,
PRIOR
TO
EXERCISING
ITS
RIGHTS OF SETOFF
ARE
HEREBY
KNOWINGLY,
VOLUNTARILY
AND
IRREVOCABLY
WAIVED BY THE BORROWER.
Payments by the Borrower thereof hereunder
shall be made without setoff or counterclaim.
SECTION 11.9 Jurisdiction; Immunities.
(a) THE BORROWER HEREBY
IRREVOCABLY
SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK, NASSAU OR
SUFFOLK
COUNTIES
OVER ANY ACTION OR
PROCEEDING
ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE NOTES, AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING
MAY BE HEARD AND
DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURT. THE BORROWER
IRREVOCABLY
CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR
PROCEEDING
BY THE MAILING
(BY CERTIFIED OR REGISTERED
MAIL) COPIES OF SUCH PROCESS TO THE BORROWER AT THE
ADDRESS
SPECIFIED IN SECTION 12.7.
THE BORROWER
AGREES THAT A FINAL
JUDGMENT
(INCLUDING
ANY
APPLICABLE
APPEALS) IN ANY SUCH ACTION OR PROCEEDING
SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER
PROVIDED BY LAW. THE BORROWER
FURTHER WAIVES ANY OBJECTION
TO VENUE IN SUCH
STATE AND ANY
OBJECTION
TO AN ACTION OR
PROCEEDING
IN SUCH
STATE ON THE BASIS OF FORUM NON CONVENIENS. THE BORROWER FURTHER AGREES THAT ANY
ACTION OR
PROCEEDING
BROUGHT
AGAINST ANY BANK SHALL BE BROUGHT ON ONLY IN NEW
YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK COUNTY.
59
(b)
EACH
OF
THE
BANKS
AND
THE
BORROWER
MUTUALLY,
KNOWINGLY,
VOLUNTARILY
WAIVE ANY RIGHT THEY MAY HAVE TO JURY
TRIAL
WITH
RESPECT TO THIS
AGREEMENT AND THE OTHER FACILITY
DOCUMENTS.
THIS WAIVER CONSTITUTES A MATERIAL
INDUCEMENT
FOR THE BANKS TO ENTER INTO THIS
AGREEMENT
AND MAKE THE
REVOLVING
CREDIT LOANS HEREUNDER.
(c) NOTHING IN THIS
SECTION 12.9 SHALL AFFECT THE RIGHT OF ANY BANK
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT
OF ANY BANK TO BRING ANY
ACTION OR
PROCEEDING
AGAINST
THE
BORROWER,
OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS.
(d) TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION,
EXECUTION
OR
OTHERWISE)
WITH
RESPECT
TO ITSELF OR ITS
PROPERTY,
IT HEREBY
IRREVOCABLY
WAIVES
SUCH
IMMUNITY
IN
RESPECT OF ITS
OBLIGATIONS
UNDER THIS
AGREEMENT AND THE NOTES.
SECTION 11.10 Table of Contents; Headings. Any table of contents and
the headings
and
captions
hereunder
are for
convenience
only and shall not
affect the interpretation or construction of this Agreement.
SECTION 11.11
Severability.
The
provisions of this
Agreement are
intended to be
severable.
If for any reason any
provision
of this
Agreement
shall be held