benefit of Borrower and Lender and Lender's successors and assigns, and
no other person or persons shall have any rights or remedies under or by reason
of this Agreement or any right to the exercise of any right or power hereunder
or arising from any default, nor shall Lender owe any duty whatsoever to any
claimant for labor performed or materials furnished in connection with the
construction of the improvements to apply any undisbursed portion of the Loan to
the payment of any such claims.
(e)
Time of Essence; Context.
Time is hereby
declared to be of the essence of this Agreement and of every part hereof.
When
the context and construction so require, all words used in the singular herein
shall be deemed to have been used in the plural and the masculine shall include
the feminine and the neuter and vice versa.
(f)
Successors and Assigns.
This Agreement
shall bind, and the rights granted by this Agreement shall inure to, the
respective successors and assigns of Lender and Borrower.
However, a Sale or
Encumbrance prohibited by Section 13(d) shall be an Event of Default.
(g)
Governing Jurisdiction.
This Agreement and
all of the other Loan Documents (except as otherwise expressly provided therein
with respect to the enforcement of specific remedies) shall be governed by and
construed in accordance with the substantive law of the State of Texas without
regard to the application of choice of law principles.
(h)
SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS.
BORROWER AND LENDER EACH HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE STATE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY,
TEXAS, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF
OR BASED UPON THIS AGREEMENT, THE SUBJECT MATTER HEREOF, ANY OTHER LOAN DOCUMENT
AND THE SUBJECT MATTER THEREOF, OR THE LOAN.
EACH OF BORROWER AND LENDER TO THE
42
EXTENT PERMITTED BY APPLICABLE
LAW (A) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE,
OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN THE
ABOVE-NAMED COURTS ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE
JURISDICTION OF SUCH COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM
ATTACHMENT OR EXECUTION BY ANY SUCH COURT, THAT THE SUIT, ACTION OR PROCEEDING
IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER OR THAT THIS
AGREEMENT, THE SUBJECT MATTER HEREOF, THE
OTHER LOAN DOCUMENTS, THE SUBJECT MATTER THEREOF, OR THE LOAN (AS APPLICABLE)
MAY NOT BE ENFORCED IN OR BY SUCH COURT, (B) HEREBY WAIVES THE RIGHT TO REMOVE
ANY SUCH ACTION, SUIT OR PROCEEDING INSTITUTED IN STATE COURT TO FEDERAL COURT,
OR TO REMAND AN ACTION INSTITUTED IN FEDERAL COURT TO STATE COURT AND (C) HEREBY
WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY OFFSETS OR
COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM
THE SAME SUBJECT MATTER.
BORROWER AND LENDER EACH HEREBY CONSENTS