Counsel
Facsimile No. (617) 457-0499
with a copy to:
Goulston & Storrs
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
Attention: Robert J. Mack, Esq.
Facsimile No. (617) 574-6595
SECTION 11.7
TRIAL BY JURY. BORROWER AND LENDER EACH
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND
LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE
AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER.
SECTION 11.8
HEADINGS. THE ARTICLE AND/OR SECTION
HEADINGS AND THE TABLE OF CONTENTS IN THIS AGREEMENT ARE INCLUDED HEREIN FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS AGREEMENT
FOR ANY OTHER PURPOSE.
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SECTION 11.9
SEVERABILITY. WHEREVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT
SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
AGREEMENT.
SECTION 11.10
PREFERENCES. TO THE EXTENT BORROWER MAKES A
PAYMENT OR PAYMENTS TO LENDER, WHICH PAYMENT OR PROCEEDS OR ANY PART THEREOF ARE
SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE
OR REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER OR ANY OTHER PARTY UNDER ANY
BANKRUPTCY LAW, STATE OR FEDERAL LAW, COMMON LAW OR EQUITABLE CAUSE, THEN, TO
THE EXTENT OF SUCH PAYMENT OR PROCEEDS RECEIVED, THE OBLIGATIONS HEREUNDER OR
PART THEREOF INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUE IN FULL
FORCE AND EFFECT, AS IF SUCH PAYMENT OR PROCEEDS HAD NOT BEEN RECEIVED BY
LENDER.
SECTION 11.11
WAIVER OF NOTICE.
BORROWER SHALL NOT BE
ENTITLED TO ANY NOTICES OF ANY NATURE WHATSOEVER FROM LENDER EXCEPT WITH RESPECT
TO MATTERS FOR WHICH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SPECIFICALLY AND
EXPRESSLY PROVIDE FOR THE GIVING OF NOTICE BY LENDER TO BORROWER AND EXCEPT WITH
RESPECT TO MATTERS FOR WHICH BORROWER IS NOT, PURSUANT TO APPLICABLE LEGAL
REQUIREMENTS, PERMITTED TO WAIVE THE GIVING OF NOTICE. BORROWER HEREBY EXPRESSLY
WAIVES THE RIGHT TO RECEIVE ANY NOTICE FROM LENDER WITH RESPECT TO ANY MATTER
FOR WHICH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS DO NOT SPECIFICALLY AND
EXPRESSLY PROVIDE FOR THE GIVING OF NOTICE BY LENDER TO BORROWER.
SECTION 11.12
REMEDIES OF BORROWER. IN THE EVENT THAT A
CLAIM OR ADJUDICATION IS MADE THAT LENDER OR ITS AGENTS HAVE ACTED UNREASONABLY
OR UNREASONABLY DELAYED ACTING IN ANY