BY LAW, TO SET OFF AND APPLY ANY AND ALL DEPOSITS (GENERAL OR SPECIAL,
TIME OR DEMAND, PROVISIONAL OR FINAL) AT ANY TIME HELD AND OTHER OBLIGATIONS (OF
WHATSOEVER KIND, INCLUDING, WITHOUT LIMITATIONS OBLIGATIONS UNDER SWAP
AGREEMENTS) AT ANY TIME
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OWING BY SUCH LENDER OR AFFILIATE TO OR FOR THE CREDIT OR THE ACCOUNT OF THE
BORROWER OR ANY SUBSIDIARY AGAINST ANY OF AND ALL THE OBLIGATIONS OF THE
BORROWER OR ANY SUBSIDIARY OWED TO SUCH LENDER NOW OR HEREAFTER EXISTING UNDER
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, IRRESPECTIVE OF WHETHER OR NOT SUCH
LENDER SHALL HAVE MADE ANY DEMAND UNDER THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND ALTHOUGH SUCH OBLIGATIONS MAY BE UNMATURED.
THE RIGHTS OF EACH
LENDER UNDER THIS SECTION 12.08 ARE IN ADDITION TO OTHER RIGHTS AND REMEDIES
(INCLUDING OTHER RIGHTS OF SETOFF) WHICH SUCH LENDER OR ITS AFFILIATES MAY HAVE.
SECTION 12.09
GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS.
(A)
THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO
EXCEPT TO THE EXTENT THAT UNITED STATES FEDERAL LAW PERMITS ANY LENDER TO
CONTRACT FOR, CHARGE, RECEIVE, RESERVE OR TAKE INTEREST AT THE RATE ALLOWED BY
THE LAWS OF THE STATE WHERE SUCH LENDER IS LOCATED.
(B)
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THE LOAN DOCUMENTS SHALL BE BROUGHT IN THE COURTS OF THE STATE OF COLORADO OR
OF THE UNITED STATES OF AMERICA FOR THE DISTRICT OF COLORADO, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND (TO THE
EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS.
THIS SUBMISSION TO JURISDICTION IS NON-EXCLUSIVE
AND DOES NOT PRECLUDE A PARTY FROM OBTAINING JURISDICTION OVER ANOTHER PARTY IN
ANY COURT OTHERWISE HAVING JURISDICTION.
(C)
EACH PARTY HEREBY (I) IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVES, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER
IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES;
(III) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL
FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS, AND (IV) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, THE LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
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HEREBY AND