transmitted or
communicated through the use of a FAX as a defense to the formation of this
Agreement.
SECTION 12.21
PARTIAL RELEASE.
LENDER
SHALL FROM TIME TO TIME DELIVER UNIT RELEASES PURSUANT TO AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 8.7 OF THIS AGREEMENT.
SECTION 12.22
GOVERNING LAW;
JURISDICTION; VENUE; AND SERVICE OF PROCESS.
(A)
CHOICE OF LAW.
THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF
LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE COMMONWEALTH OF VIRGINIA, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
(B)
CONSENT TO JURISDICTION. THE PARTIES TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR VIRGINIA STATE COURT
SITTING IN THE COMMONWEALTH OF VIRGINIA IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS AND SUCH
PARTIES HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF LENDER TO BRING
PROCEEDINGS AGAINST BORROWER, ANY BORROWER PARTY AND/OR GUARANTOR IN THE COURTS
OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY BORROWER, ANY BORROWER
PARTY AND/OR GUARANTOR AGAINST LENDER OR ANY OTHER LENDER PARTY INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT ONLY
IN A COURT IN THE COMMONWEALTH OF VIRGINIA. BORROWER HEREBY IRREVOCABLY
DESIGNATES AS AGENT FOR SERVICE OF PROCESS CHRISTOPHER CLEMENTE WITH OFFICES
PRESENTLY AT 11465 SUNSET HILLS ROAD, SUITE 510, RESTON, VIRGINIA 20190 AS ITS
AGENT TO RECEIVE SERVICE OF ANY AND ALL PROCESS AND DOCUMENTS ON ITS BEHALF IN
ANY LEGAL PROCEEDING IN THE COMMONWEALTH OF VIRGINIA
(C)
WAIVER OF JURY TRIAL.
THE PARTIES TO THIS
AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THAT
SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER
STATEMENTS OR ACTIONS OF THE OTHER PARTY TO THIS AGREEMENT.
47
(D)
INCORPORATION OF PROVISIONS. BORROWER ACKNOWLEDGES THAT BORROWER'S
AGREEMENT TO COMPLY WITH THE PROVISIONS SET FORTH IN THIS SECTION 12.22 IS A
MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS AGREEMENT AND EACH SUCH OTHER
LOAN DOCUMENT, AND THAT THESE PROVISIONS SHALL BE EFFECTIVE AS TO EACH OF THE
OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
SECTION 12.23
WAIVER OF PUNITIVE AND CONSEQUENTIAL DAMAGES.
IN NO
EVENT SHALL LENDER BE LIABLE TO BORROWER FOR PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS,