IS SOUGHT.
EXCEPT AS PROVIDED IN SECTION 4.1, THIS
AGREEMENT SHALL BECOME EFFECTIVE WHEN IT SHALL HAVE BEEN EXECUTED BY THE
ADMINISTRATIVE AGENT AND WHEN THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
COUNTERPARTS HEREOF THAT, WHEN TAKEN TOGETHER, BEAR THE SIGNATURES OF EACH OF
THE OTHER PARTIES HERETO.
12.11
ENTIRE AGREEMENT, ETC.
THE LOAN DOCUMENTS AND ANY OTHER DOCUMENTS
EXECUTED IN CONNECTION HEREWITH OR THEREWITH EXPRESS THE ENTIRE UNDERSTANDING OF
THE PARTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY AND SUPERSEDE
ALL PRIOR AGREEMENTS WITH RESPECT TO THE SUBJECT MATTER HEREOF, EXCEPT FOR THE
LETTER AGREEMENT DATED JANUARY 3, 2008 BETWEEN THE PARENT AND THE ADMINISTRATIVE
AGENT WITH RESPECT TO CERTAIN FEES PAYABLE TO THE ADMINISTRATIVE AGENT AND OTHER
PARTIES IDENTIFIED THEREIN (AS AMENDED FROM TIME TO TIME, THE "FEE LETTER"),
WHICH FEE LETTER SHALL CONTINUE IN FULL FORCE AND EFFECT AND SHALL NOT BE
SUPERSEDED BY ANY OF THE LOAN DOCUMENTS.
12.12
WAIVER OF JURY TRIAL.
THE BORROWERS AND EACH OF THE LENDERS HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A 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 LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER, 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
ADMINISTRATION AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OR ENFORCEMENT
OF THE LOANS AND THE LOAN DOCUMENTS, AND AGREE THAT THEY WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
91
EXCEPT AS PROHIBITED BY LAW, THE BORROWERS AND EACH OF THE LENDERS HEREBY WAIVE
ANY RIGHT THEY 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.
THE BORROWERS (a) CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE
LENDERS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDERS WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(b) ACKNOWLEDGE THAT THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS TO WHICH EACH IS A PARTY BECAUSE OF, AMONG OTHER
THINGS, THE BORROWERS' WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
12.13
GOVERNING LAW.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS
ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
12.14
JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(A) THE BORROWERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF