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This excerpt taken from the AYR 8-K filed May 5, 2008. Lending
Party”) agrees to keep confidential any information furnished or made
available to it by any Borrower or any other ACS Group Member or any Affiliate
thereof, pursuant to or in connection with this Agreement or the other Related
Documents; provided
that nothing herein shall prevent any Lending Party from disclosing such
information (a) to any other Lending Party or any Affiliate of any Lending
Party, or any officer, director, employee, Facility Agent, or advisor of any
Lending Party or Affiliate or any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the
order of any court or administrative agency, (e) upon the request or demand
of any regulatory agency or authority, (f) that is or becomes available to
the public or that is or becomes available to any Lending Party other than as a
result of a disclosure by any Lending Party prohibited by this Agreement,
(g) in connection with any litigation to which such Lending Party or any of
its Affiliates may be a party, (h) to the extent necessary in connection
with the exercise of any remedy under this Agreement or any other Related
Document, and (i) subject to provisions substantially similar to those
contained in this Section, to any actual or proposed participant or
assignee.
8.15. Governing Law; Waiver of Jury
Trial.
(a) This
Agreement shall in all respects be governed by, and construed in accordance
with, the laws of the State of New York, including all matters of construction,
validity and performance.
(b) Each
of the parties hereto agrees that the United States federal and New York State
courts located in The City of New York shall have jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Agreement and, for such purposes,
submits to the jurisdiction of such courts. Each of
30
the
parties hereto waives any objection which it might now or hereafter have to the
United States federal or New York State courts located in The City of New York
being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in connection
with this Agreement and agrees not to claim that any such court is not a
convenient or appropriate forum. Each Borrower agrees that the
process by which any suit, action or proceeding is begun may be served on it by
being delivered in connection with any suit, action or proceeding in The City of
New York to Corporation Service Company, with an office on the date hereof at
1133 Avenue of the Americas, Suite 3100, New York, New York 10036 and each of
the parties hereby appoints Corporation Service Company, its designee, appointee
and Facility Agent to receive, accept and acknowledge for and on its behalf such
service of legal process, with the exception of the Facility Agent, Sole
Bookrunner, Joint Lead Arrangers and Lenders, who hereby consents to receive any
such service of process directly at the address set forth in Section 13.05
of the Intercreditor Agreements. Each party hereto irrevocably consents to
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding brought in the United States of America arising out
of or in connection with this Agreement or any other Relevant Document by
mailing (by registered or certified mail, postage prepaid) or delivering of a
copy of such process to such party at its address specified in Section 8.05 of
the Intercreditor Agreements.
(c) The
submission to the jurisdiction of the courts referred to in Section 8.15(b)
hereof shall not (and shall not be construed so as to) limit the right of the
Facility Agent to take proceedings against the Borrowers in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
(d) Each
of the parties hereto hereby consents generally in respect of any legal action
or proceeding arising out of or in connection with this Agreement to the giving
of any relief or the issue of any process in connection with such action or
proceeding, including the making, enforcement or execution against any property
whatsoever (irrespective of its use or intended use) of any order or judgment
which may be made or given in such action or proceeding.
(f)
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY RELEVANT DOCUMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, THE BORROWERS, THE FACILITY AGENT AND THE LENDERS HEREBY
AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY
IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH
PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
8.16. Judgment Currency.
(a) To
the extent permitted by applicable law, if for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in United
States Dollars
31
into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be determined in
accordance with Section 8.16(b) hereof on the Business Day preceding that
on which final judgment is given.
(b) To
the extent permitted by applicable law, the obligation of each ACS Group Member
in respect of any sum due in United States Dollars from it to any Lender or the
Facility Agent hereunder shall, notwithstanding any judgment in a currency other
than United States Dollars, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Facility Agent (as the case
may be) of any sum adjudged to be so due in such other currency, such Lender or
the Facility Agent (as the case may be) may in accordance with normal banking
procedures purchase United States Dollars with such other currency; if the
United States Dollars so purchased are less than such sum due to such Lender or
the Facility Agent (as the case may be) in United States Dollars, each ACS Group
Member agrees, to the extent permitted by applicable law, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender or
the Facility Agent (as the case may be) against such loss, and if the United
States Dollars so purchased exceed such sum due to any Lender or the Facility
Agent (as the case may be) in United States Dollars, such Lender or the Facility
Agent (as the case may be) agrees to remit to each such ACS Group Member such
excess.
8.17. USA PATRIOT Act. Each
Lender hereby notifies each Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “ This excerpt taken from the AYR 8-K filed May 5, 2008. Lending
Party”) agrees to keep confidential any information furnished or made
available to it by any Borrower or any other ACS Group Member or any Affiliate
thereof, pursuant to or in connection with this Agreement or the other Related
Documents; provided
that nothing herein shall prevent any Lending Party from disclosing such
information (a) to any other Lending Party or any Affiliate of any Lending
Party, or any officer, director, employee, Facility Agent, or advisor of any
Lending Party or Affiliate or any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the
order of any court or administrative agency, (e) upon the request or demand
of any regulatory agency or authority, (f) that is or becomes available to
the public or that is or becomes available to any Lending Party other than as a
result of a disclosure by any Lending Party prohibited by this Agreement,
(g) in connection with any litigation to which such Lending Party or any of
its Affiliates may be a party, (h) to the extent necessary in connection
with the exercise of any remedy under this Agreement or any other Related
Document, and (i) subject to provisions substantially similar to those
contained in this Section, to any actual or proposed participant or
assignee.
8.15. Governing Law; Waiver of Jury
Trial.
(a) This
Agreement shall in all respects be governed by, and construed in accordance
with, the laws of the State of New York, including all matters of construction,
validity and performance.
(b) Each
of the parties hereto agrees that the United States federal and New York State
courts located in The City of New York shall have jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Agreement and, for such purposes,
submits to the jurisdiction of such courts. Each of
30
the
parties hereto waives any objection which it might now or hereafter have to the
United States federal or New York State courts located in The City of New York
being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in connection
with this Agreement and agrees not to claim that any such court is not a
convenient or appropriate forum. Each Borrower agrees that the
process by which any suit, action or proceeding is begun may be served on it by
being delivered in connection with any suit, action or proceeding in The City of
New York to Corporation Service Company, with an office on the date hereof at
1133 Avenue of the Americas, Suite 3100, New York, New York 10036 and each of
the parties hereby appoints Corporation Service Company, its designee, appointee
and Facility Agent to receive, accept and acknowledge for and on its behalf such
service of legal process, with the exception of the Facility Agent, Sole
Bookrunner, Joint Lead Arrangers and Lenders, who hereby consents to receive any
such service of process directly at the address set forth in Section 13.05
of the Intercreditor Agreements. Each party hereto irrevocably consents to
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding brought in the United States of America arising out
of or in connection with this Agreement or any other Relevant Document by
mailing (by registered or certified mail, postage prepaid) or delivering of a
copy of such process to such party at its address specified in Section 8.05 of
the Intercreditor Agreements.
(c) The
submission to the jurisdiction of the courts referred to in Section 8.15(b)
hereof shall not (and shall not be construed so as to) limit the right of the
Facility Agent to take proceedings against the Borrowers in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
(d) Each
of the parties hereto hereby consents generally in respect of any legal action
or proceeding arising out of or in connection with this Agreement to the giving
of any relief or the issue of any process in connection with such action or
proceeding, including the making, enforcement or execution against any property
whatsoever (irrespective of its use or intended use) of any order or judgment
which may be made or given in such action or proceeding.
(f)
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY RELEVANT DOCUMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, THE BORROWERS, THE FACILITY AGENT AND THE LENDERS HEREBY
AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY
IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH
PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
8.16. Judgment Currency.
(a) To
the extent permitted by applicable law, if for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in United
States Dollars
31
into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be determined in
accordance with Section 8.16(b) hereof on the Business Day preceding that
on which final judgment is given.
(b) To
the extent permitted by applicable law, the obligation of each ACS Group Member
in respect of any sum due in United States Dollars from it to any Lender or the
Facility Agent hereunder shall, notwithstanding any judgment in a currency other
than United States Dollars, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Facility Agent (as the case
may be) of any sum adjudged to be so due in such other currency, such Lender or
the Facility Agent (as the case may be) may in accordance with normal banking
procedures purchase United States Dollars with such other currency; if the
United States Dollars so purchased are less than such sum due to such Lender or
the Facility Agent (as the case may be) in United States Dollars, each ACS Group
Member agrees, to the extent permitted by applicable law, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender or
the Facility Agent (as the case may be) against such loss, and if the United
States Dollars so purchased exceed such sum due to any Lender or the Facility
Agent (as the case may be) in United States Dollars, such Lender or the Facility
Agent (as the case may be) agrees to remit to each such ACS Group Member such
excess.
8.17. USA PATRIOT Act. Each
Lender hereby notifies each Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “ | EXCERPTS ON THIS PAGE:
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