YORK AND
THE SUPREME COURT OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK IN ANY
ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF AGENT AND OWNER HEREBY WAIVES AND AGREES
NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURT, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER, OR THAT THIS AGREEMENT OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO
HEREIN OR THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURT.
THIS SUBMISSION TO JURISDICTION IS NONEXCLUSIVE AND DOES NOT PRECLUDE OWNER OR
ANY ASSIGNEE OR AGENT FROM OBTAINING JURISDICTION OVER ONE ANOTHER IN ANY COURT
OTHERWISE HAVING JURISDICTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
OF AGENT AND OWNER AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW
OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT.
EACH OF AGENT AND OWNER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS
AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK. OWNER AND AGENT
EXPRESSLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
OWNER AND AGENT ACKNOWLEDGE THAT THE PROVISIONS OF THIS SUBSECTION 18.9 HAVE
BEEN BARGAINED FOR AND THAT THEY HAVE BEEN REPRESENTED BY COUNSEL IN CONNECTION
THEREWITH.
18.10.
Captions. The captions in this Agreement are for convenience of
reference only, and shall not be deemed to affect the meaning or construction of
any of the provisions hereof.
18.11.
Maintenance of Equity. Owner covenants that at all times during the
term of this Agreement, Owner's capitalization shall be such that at least three
percent (3%) of its capitalization (including interest required to be
capitalized in accordance with generally accepted accounting principles on the
principal outstanding on any Financing Arrangement and net of any fees paid to
the equity investors and any affiliates of the equity investors) will consist of
cash contributions from Owner's general partner and limited partners.
18.12.
Released Land.
(a)
Owner and Agent acknowledge that certain of the Land Improvement Contracts
may require that title to certain improvements relating to the Project (the
"Released Improvements") and the land on which such Released Improvements are or
will be located (the "Released Land") be transferred to the Applicable
Contracting Party pursuant to the provisions of the applicable Land Improvement
Contract.
(b)
Upon the request of Agent, and provided that no Event of Loss, Event of
Default,