on behalf of the
Holders.
11.12
Entire Agreement.
This Agreement, together with the other
Operative Documents, embodies the entire agreement and understanding between the
Borrower, the Guarantors, the Holder Representative and the Holders, and
supersedes all prior agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
11.13
Severability.
The invalidity or unenforceability of any provision
hereof shall in no way afflict the validity or enforceability of any other
provision.
11.14
Waiver of Jury Trial; Waiver of Certain Damages.
EACH OF THE
BORROWER, EACH GUARANTOR, THE PURCHASER, THE HOLDER REPRESENTATIVE AND (BY
ACCEPTANCE OF ANY NOTE(S) HELD BY IT) EACH HOLDER HEREBY WAIVES ITS RIGHT TO
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER OPERATIVE
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING ,
WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF THE PURCHASER RELATING TO THE ADMINISTRATION OR ENFORCEMENT OF THE
NOTES AND THE OTHER OPERATIVE DOCUMENTS, AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
EXCEPT AS PROHIBITED BY LAW, EACH PARTY HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH OF
THE PARTIES (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (b)
ACKNOWLEDGES THAT EACH OF THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS TO WHICH IT IS A PARTY BECAUSE OF,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
63
11.15
Governing Law; Jurisdiction; Venue; Place of Performance.
THIS
AGREEMENT AND EACH OF THE OTHER OPERATIVE DOCUMENTS ARE CONTRACTS UNDER THE LAWS
OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW).
THE BORROWER AND EACH GUARANTOR CONSENT TO THE
JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN NEW YORK COUNTY IN THE
STATE OF NEW YORK IN CONNECTION WITH ANY SUIT TO ENFORCE THE RIGHTS OF ANY
HOLDERS UNDER THIS AGREEMENT OR ANY OF THE OTHER OPERATIVE DOCUMENTS AND CONSENT
TO SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR ANY SUCH
GUARANTOR, AS THE CASE MAY BE, BY MAIL AT THE BORROWER'S OR SUCH GUARANTOR'S
ADDRESS SET FORTH HEREIN.
THE BORROWER AND