and the Schedules attached hereto (the language
of which Schedules is hereby incorporated by reference herein and made a part
hereof), together with any applicable Servicing Supplement(s), the Origination
Agreement and the Economics Agreement sets forth the entire understanding of the
Parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Servicing Agreement. This Servicing
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
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Notwithstanding the foregoing, the ongoing covenants and obligations of the
Servicer set forth in Sections 5.01, the "Compliance Conditions", and Schedules
8.1 through 8.6 of the Origination Agreement are hereby incorporated into the
Servicing Agreement and shall remain in effect notwithstanding the termination
or expiration of the Origination Agreement.
Section 7.11 Headings. The headings are for purposes of reference only and shall
not otherwise affect the meaning or interpretation of any provision hereof.
Section 7.12 Survival. All representations, warranties and agreements contained
in this Servicing Agreement shall remain operative and in full force and effect
and shall survive until the termination of this Servicing Agreement. In
addition, the termination or expiration of this Servicing Agreement shall not
affect the rights of either Party to recover for breaches occurring prior
thereto or with respect to provisions of this Servicing Agreement that by their
terms continue after termination.
Section 7.13. Third-Party Claims. The Servicer hereby agrees to indemnify and
hold the Lender harmless from and with respect to Indemnified Costs in
accordance with Schedule C attached hereto.
Section 7.14. Consent to Jurisdiction and Venue; Waiver of Jury Trial.
(a)EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN THE
SERVICER AND THE LENDER WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW
AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDER AND THE SERVICER
HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY
KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY
OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS SERVICING AGREEMENT, THE
ORIGINATION AGREEMENT, ANY LOAN AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY
AND/OR THEREBY OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG THE SERVICER OR THE LENDER OF ANY KIND OR NATURE
RELATING TO ANY OF THIS SERVICING AGREEMENT, THE ORIGINATION AGREEMENT OR THE
LOANS.
(b)EACH OF THE SERVICER AND THE LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT
COURT OF THE NORTHERN DISTRICT OF GEORGIA AND ANY STATE COURT LOCATED IN
ATLANTA, GEORGIA, SHALL HAVE THE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES BETWEEN THE SERVICER AND THE LENDER, PERTAINING DIRECTLY
OR INDIRECTLY TO THIS SERVICING AGREEMENT, THE ORIGINATION AGREEMENT, ANY LOAN
AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THEREBY OR TO ANY MATTER
ARISING HEREFROM OR THEREFROM. THE SERVICER AND THE LENDER EXPRESSLY SUBMIT AND
CONSENT IN ADVANCE TO SUCH JURISDICTION