PROVISION OF THIS AGREEMENT HELD TO BE INVALID,
ILLEGAL OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE
36
INEFFECTIVE TO THE EXTENT OF SUCH INVALIDITY, ILLEGALITY OR UNENFORCEABILITY
WITHOUT AFFECTING THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING
PROVISIONS HEREOF; AND THE INVALIDITY OF A PARTICULAR PROVISION IN A PARTICULAR
JURISDICTION SHALL NOT INVALIDATE SUCH PROVISION IN ANY OTHER JURISDICTION.
THE
PARTIES SHALL ENDEAVOR IN GOOD-FAITH NEGOTIATIONS TO REPLACE THE INVALID,
ILLEGAL OR UNENFORCEABLE PROVISIONS WITH VALID PROVISIONS THE ECONOMIC EFFECT OF
WHICH COMES AS CLOSE AS POSSIBLE TO THAT OF THE INVALID, ILLEGAL OR
UNENFORCEABLE PROVISIONS.
SECTION 7.08. Right of Set-Off.
(a)
Each Loan Party expressly agrees to the
provisions set forth in Section 9.06 of the Credit Agreement with the same force
and effect as if such provisions were set forth in full herein.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AT
ANY TIME THAT THE OBLIGATIONS SHALL BE SECURED BY ANY REAL PROPERTY LOCATED IN
THE STATE OF CALIFORNIA, NO SECURED PARTY SHALL EXERCISE ANY RIGHT OF SET-OFF,
LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDINGS TO ENFORCE ANY PROVISION OF THIS AGREEMENT WITHOUT THE PRIOR CONSENT
OF THE ADMINISTRATIVE AGENT OR THE REQUIRED LENDERS OR, TO THE EXTENT REQUIRED
BY SECTION 9.08(B) OF THE CREDIT AGREEMENT, ALL OF THE LENDERS, IF SUCH SETOFF
OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO SECTIONS 580A, 580B, 580D
AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE
CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE
VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE ADMINISTRATIVE
AGENT PURSUANT TO THIS AGREEMENT OR THE OTHER SECURITY DOCUMENTS OR THE
ENFORCEABILITY OF THE OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY
SECURED PARTY OR THE ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING
SUCH CONSENT OF THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL
AND VOID.
IT IS UNDERSTOOD AND AGREED THAT THE FOREGOING SENTENCE OF THIS
SECTION 7.08(B) IS FOR THE SOLE BENEFIT OF THE SECURED PARTIES AND MAY BE
AMENDED, MODIFIED OR WAIVED IN ANY RESPECT BY THE REQUIRED LENDERS (WITHOUT ANY
REQUIREMENT OF PRIOR NOTICE TO OR CONSENT BY ANY LOAN PARTY OR ANY OTHER PERSON)
AND DOES NOT CONSTITUTE A WAIVER OF ANY RIGHTS AGAINST ANY LOAN PARTY OR AGAINST
ANY COLLATERAL.
SECTION 7.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a)
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York, including Sections 5-1401 and 5-1402 of Title 14 of
the New York General Obligations Law but excluding all other choice of law and
conflicts of laws rules thereof.
(B)
EACH OF THE LOAN PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY,
AND ANY APPELLATE