Lien Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Senior First Lien Obligations" shall mean all Bank Credit Document Obligations
and all Other Obligations.
"Senior First Lien Primary Obligations" shall mean (i) in the case of the Bank
Credit Document Obligations, all principal of, premium (if any), and interest on
all US Loans under the Bank Credit Agreement, all unreimbursed Letter of Credit
Obligations that may occur with respect to outstanding Letters of Credit under
the Bank Credit Agreement and all fees owing pursuant to the Credit Agreement
and (ii) in the case of Other Obligations, all amounts due under any Hedge
Agreements (other than indemnities, fees (including, without limitation,
attorneys' fees) and similar obligations and liabilities).
"Senior First Lien Secondary Obligations" shall mean all Senior First Lien
Obligations other than Senior First Lien Primary Obligations.
"US Agent" shall have the meaning provided in the recitals to this Agreement.
"US Borrowers" shall have the meaning provided in the recitals to this
Agreement.
"US Finance Corp." shall have the meaning provided in the recitals to this
Agreement.
10.
EACH PARTY HERETO HEREBY REPRESENTS AND WARRANTS THAT (I) SUCH
PARTY HAS THE POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM THE TERMS AND
PROVISIONS OF THIS AGREEMENT AND HAS TAKEN ALL NECESSARY ACTION TO AUTHORIZE THE
EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS AGREEMENT AND (II) SUCH PARTY
HAS DULY EXECUTED AND DELIVERED THIS AGREEMENT, AND THAT THIS AGREEMENT
CONSTITUTES ITS LEGAL, VALID AND BINDING OBLIGATION ENFORCEABLE IN ACCORDANCE
WITH ITS TERMS, EXCEPT TO THE EXTENT THAT THE ENFORCEABILITY HEREOF MAY BE
LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR
OTHER SIMILAR LAWS GENERALLY AFFECTING CREDITORS' RIGHTS AND BY EQUITABLE
PRINCIPLES (REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN EQUITY OR AT LAW).
11.
NOTICES.
EXCEPT AS OTHERWISE SPECIFIED HEREIN, ALL NOTICES,
REQUESTS, DEMANDS OR OTHER COMMUNICATIONS TO OR UPON THE RESPECTIVE PARTIES
HERETO SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN OR MADE
WHEN DELIVERED TO THE PARTY TO WHICH SUCH NOTICE, REQUEST, DEMAND OR OTHER
COMMUNICATION IS REQUIRED OR PERMITTED TO BE GIVEN OR MADE UNDER THIS AGREEMENT,
ADDRESSED IN THE MANNER PROVIDED IN THE US SECURITY AGREEMENT.
16
12.
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL.
(A)
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS).
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFOREMENTIONED COURTS.
EACH PARTY
HEREBY FURTHER IRREVOCABLY WAIVES