TO THE TERMS OF SECTION 8.12, AND SUBJECT TO LENDER OBTAINING
THE AGREEMENT OF SUCH ASSIGNEE OR POTENTIAL ASSIGNEE TO BE BOUND BY THE TERMS OF
SECTION 8.12.
8.06
SETOFF.
IN ADDITION TO ANY RIGHTS AND REMEDIES OF LENDER PROVIDED BY LAW,
LENDER SHALL HAVE THE RIGHT, WITHOUT PRIOR NOTICE TO BORROWER, ANY SUCH NOTICE
BEING EXPRESSLY WAIVED BY BORROWER TO THE EXTENT PERMITTED BY APPLICABLE LAW, AT
ANY TIME LENDER IS ENTITLED TO TERMINATE THE COMMITMENT FOLLOWING THE OCCURRENCE
AND DURING THE CONTINUANCE OF A DEFAULT OR AN EVENT OF DEFAULT, TO SET-OFF AND
APPLY AGAINST ANY INDEBTEDNESS, WHETHER MATURED OR UNMATURED, OF BORROWER TO
LENDER (INCLUDING
THE OBLIGATIONS), ANY AMOUNT OWING FROM LENDER TO BORROWER.
THE AFORESAID RIGHT OF SET-OFF MAY BE EXERCISED BY LENDER AGAINST BORROWER OR
AGAINST ANY TRUSTEE IN BANKRUPTCY, DEBTOR-IN-POSSESSION, ASSIGNEE FOR THE
BENEFIT OF CREDITORS, RECEIVER OR EXECUTION, JUDGMENT OR ATTACHMENT CREDITOR OF
BORROWER OR AGAINST ANYONE ELSE CLAIMING THROUGH
24
OR AGAINST BORROWER OR SUCH TRUSTEE IN BANKRUPTCY, DEBTOR-IN-POSSESSION,
ASSIGNEE FOR THE BENEFIT OF CREDITORS, RECEIVER, OR EXECUTION, JUDGMENT OR
ATTACHMENT CREDITOR, NOTWITHSTANDING THE FACT THAT SUCH RIGHT OF SET-OFF SHALL
NOT HAVE BEEN EXERCISED BY LENDER PRIOR TO THE OCCURRENCE OF A DEFAULT OR AN
EVENT OF DEFAULT. LENDER AGREES PROMPTLY TO NOTIFY BORROWER AFTER ANY SUCH
SET-OFF AND APPLICATION MADE BY LENDER, PROVIDED THAT THE FAILURE TO GIVE SUCH
NOTICE SHALL NOT AFFECT THE VALIDITY OF SUCH SET-OFF AND APPLICATION.
8.07
NO THIRD PARTY RIGHTS.
SUBJECT TO THE TERMS OF THE JOINT VENTURE
AGREEMENT, NOTHING EXPRESSED IN OR TO BE IMPLIED FROM THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT IS INTENDED TO GIVE, OR SHALL BE CONSTRUED TO GIVE, ANY
PERSON, OTHER THAN THE PARTIES HERETO AND THERETO AND THEIR PERMITTED SUCCESSORS
AND ASSIGNS, ANY BENEFIT OR LEGAL OR EQUITABLE RIGHT, REMEDY OR CLAIM UNDER OR
BY VIRTUE OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT.
8.08
PARTIAL INVALIDITY.
IF AT ANY TIME ANY PROVISION OF THIS AGREEMENT IS OR
BECOMES ILLEGAL, INVALID OR UNENFORCEABLE IN ANY RESPECT UNDER THE LAW OF ANY
JURISDICTION, NEITHER THE LEGALITY, VALIDITY OR ENFORCEABILITY OF THE REMAINING
PROVISIONS OF THIS AGREEMENT NOR THE LEGALITY, VALIDITY OR ENFORCEABILITY OF
SUCH PROVISION UNDER THE LAW OF ANY OTHER JURISDICTION SHALL IN ANY WAY BE
AFFECTED OR IMPAIRED THEREBY.
8.09
JURY TRIAL.
EACH OF BORROWER AND LENDER, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING TO ANY CREDIT DOCUMENT IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY. THIS WAIVER IS A MATERIAL
INDUCEMENT FOR OUR ENTERING INTO THIS AGREEMENT.
8.10
SUBMISSION TO JURISDICTION.
EACH OF BORROWER AND LENDER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL COURTS
SITTING IN MINNEAPOLIS OR ST. PAUL, MINNESOTA AND ANY STATE COURT LOCATED IN
HENNEPIN COUNTY, MINNESOTA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF BORROWER AND