and other obligations which shall have become
due and payable under the Other Documents or otherwise and not repaid pursuant
to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus.
In carrying out the foregoing, amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category.
XI.
WAIVERS AND JUDICIAL PROCEEDINGS.
11.1
WAIVER OF NOTICE. BORROWER HEREBY WAIVES NOTICE OF DEMAND,
PRESENTMENT, PROTEST AND NOTICE THEREOF WITH RESPECT TO ANY AND ALL INSTRUMENTS,
NOTICE OF ACCEPTANCE HEREOF, NOTICE OF LOANS OR ADVANCES MADE, CREDIT EXTENDED,
OR ANY OTHER ACTION TAKEN IN RELIANCE HEREON,
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AND ALL OTHER DEMANDS AND NOTICES OF ANY DESCRIPTION, EXCEPT SUCH AS ARE
EXPRESSLY PROVIDED FOR HEREIN.
11.2
DELAY. NO DELAY OR OMISSION ON BRASCAN'S OR BRASCAN'S PART IN
EXERCISING ANY RIGHT, REMEDY OR OPTION SHALL OPERATE AS A WAIVER OF SUCH OR ANY
OTHER RIGHT, REMEDY OR OPTION OR OF ANY DEFAULT OR EVENT OF DEFAULT.
11.3
JURY WAIVER. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
XII.
EFFECTIVE DATE AND TERMINATION.
12.1
TERM. THIS AGREEMENT, WHICH SHALL INURE TO THE BENEFIT OF AND SHALL
BE BINDING UPON THE RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS OF BORROWER,
BRASCAN AND BRASCAN, SHALL BECOME EFFECTIVE ON THE DATE HEREOF AND SHALL
CONTINUE IN FULL FORCE AND EFFECT UNTIL THE FIRST ANNIVERSARY OF THE CLOSING
DATE (THE "TERM") UNLESS SOONER TERMINATED AS HEREIN PROVIDED.
12.2
TERMINATION. THE TERMINATION OF THE AGREEMENT SHALL NOT AFFECT
BORROWER'S, BRASCAN'S RIGHTS, OR ANY OF THE OBLIGATIONS HAVING THEIR INCEPTION
PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION, AND THE PROVISIONS HEREOF SHALL
CONTINUE TO BE FULLY OPERATIVE UNTIL ALL TRANSACTIONS ENTERED INTO, RIGHTS OR
INTERESTS CREATED OR OBLIGATIONS HAVE BEEN FULLY AND INDEFEASIBLY PAID, DISPOSED
OF, CONCLUDED OR LIQUIDATED. THE RIGHTS GRANTED TO BRASCAN HEREUNDER SHALL
CONTINUE IN FULL FORCE AND EFFECT, NOTWITHSTANDING THE TERMINATION OF THIS
AGREEMENT OR THE FACT THAT BORROWER'S ACCOUNT