NONETHELESS SURVIVE AS TO ANY LEGAL
ACTIONS THAT ARE THEN PENDING OR SUBJECT TO FURTHER APPEAL AS OF THE SECOND
ANNIVERSARY OF SUCH REPAYMENT IN FULL OF THE DEBT OR THE TAKING OF TITLE (AS
APPLICABLE).
11.
INTEREST.
ANY AMOUNTS PAYABLE TO ANY INDEMNIFIED PARTIES UNDER
THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE ON DEMAND AND, IF NOT
PAID WITHIN TEN (10) BUSINESS DAYS OF SUCH DEMAND THEREFOR, SHALL BEAR INTEREST
AT THE DEFAULT RATE.
12.
WAIVERS.
(A)
EXCEPT AS OTHERWISE PROVIDED IN THE LOAN AGREEMENT,
INDEMNITOR HEREBY WAIVES AND RELINQUISHES (I) ANY RIGHT OR CLAIM OF RIGHT TO
CAUSE A MARSHALING OF INDEMNITOR'S ASSETS OR TO CAUSE INDEMNITEE OR ANY OTHER
INDEMNIFIED PARTY TO PROCEED AGAINST ANY OF THE SECURITY FOR THE LOAN BEFORE
PROCEEDING UNDER THIS AGREEMENT AGAINST INDEMNITOR; (II) ALL RIGHTS AND REMEDIES
ACCORDED BY APPLICABLE LAW TO INDEMNITORS OR GUARANTORS GENERALLY, INCLUDING ANY
RIGHTS OF SUBROGATION WHICH INDEMNITOR MAY HAVE, PROVIDED
THAT THE INDEMNITY
PROVIDED FOR HEREUNDER SHALL NEITHER BE CONTINGENT UPON THE EXISTENCE OF ANY
SUCH RIGHTS OF SUBROGATION NOR SUBJECT TO ANY CLAIMS OR DEFENSES WHATSOEVER
WHICH MAY BE ASSERTED IN CONNECTION WITH THE ENFORCEMENT OR ATTEMPTED
ENFORCEMENT OF SUCH SUBROGATION RIGHTS, INCLUDING, WITHOUT LIMITATION, ANY CLAIM
THAT SUCH SUBROGATION RIGHTS WERE ABROGATED BY ANY ACTS OF INDEMNITEE OR ANY
OTHER INDEMNIFIED PARTY; (III) THE RIGHT TO ASSERT A COUNTERCLAIM, EXCEPT WHEN
SUCH COUNTERCLAIM IS AGAINST A THIRD PARTY, OTHER THAN A MANDATORY OR COMPULSORY
COUNTERCLAIM, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST OR BY INDEMNITEE OR
ANY OTHER INDEMNIFIED PARTY; (IV) NOTICE OF ACCEPTANCE HEREOF AND OF ANY ACTION
TAKEN OR OMITTED IN RELIANCE HEREON; (V) PRESENTMENT FOR PAYMENT, DEMAND OF
PAYMENT, PROTEST OR NOTICE OF NONPAYMENT OR FAILURE TO PERFORM OR OBSERVE, OR
OTHER PROOF, OR NOTICE OR DEMAND; AND (VI) ALL HOMESTEAD EXEMPTION RIGHTS
AGAINST THE OBLIGATIONS HEREUNDER AND THE BENEFITS OF ANY STATUTES OF
LIMITATIONS OR REPOSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, INDEMNITOR HEREBY AGREES TO POSTPONE THE EXERCISE OF ANY RIGHTS OF
SUBROGATION WITH RESPECT TO ANY COLLATERAL SECURING THE OBLIGATIONS UNTIL THE
DEBT SHALL HAVE BEEN PAID IN FULL OR ITS OBLIGATIONS UNDER THIS AGREEMENT HAVE
EARLIER TERMINATED.
11
(B)
INDEMNITOR, INDEMNITEE AND EACH INDEMNIFIED PARTY EACH HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE
APPLICATION FOR THE LOAN EVIDENCED BY THE NOTE, THE MORTGAGE, THIS AGREEMENT OR
THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF ANY PARTY OR PARTIES IN
CONNECTION THEREWITH.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY INDEMNITOR, INDEMNITEE AND EACH INDEMNIFIED PARTY AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
THE INDEMNIFIED PARTIES ARE
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN