KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY (A) CONSENTS IN EACH ACTION AND OTHER LEGAL
PROCEEDING COMMENCED BY LENDER AND ARISING OUT OF OR OTHERWISE RELATING TO THIS
NOTE OR ANY COLLATERAL RELATED HERETO TO THE NONEXCLUSIVE PERSONAL JURISDICTION
OF ANY COURT THAT IS EITHER A COURT OF RECORD OF THE STATE OF NEW YORK OR A
COURT OF THE UNITED STATES LOCATED IN THE STATE OF NEW YORK, (B) WAIVES EACH
OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ACTION OR OTHER LEGAL PROCEEDING,
(C) WAIVES PERSONAL SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL
PROCEEDING, AND (D) CONSENTS TO THE MAKING OF SERVICE OF PROCESS IN EACH SUCH
ACTION AND OTHER LEGAL PROCEEDING BY REGISTERED MAIL DIRECTED TO BORROWER AT THE
LAST ADDRESS OF BORROWER SHOWN IN THE RECORDS RELATING TO THIS NOTE MAINTAINED
BY LENDER, WITH SUCH SERVICE OF PROCESS TO BE DEEMED COMPLETED FIVE (5) DAYS
AFTER THE MAILING THEREOF.
16.
WAIVER OF JURY TRIAL.
BORROWER KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY WAIVES EACH RIGHT BORROWER MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO, AND EACH RIGHT TO ASSERT ANY CLAIM FOR DAMAGES (INCLUDING,
BUT NOT LIMITED TO, PUNITIVE DAMAGES) IN ANY ACTION OR OTHER LEGAL PROCEEDING OF
ANY NATURE, RELATING TO (A) THIS NOTE, ANY RELATED LOAN DOCUMENT OR ANY
COLLATERAL RELATED HERETO, (B) ANY TRANSACTION CONTEMPLATED BY ANY SUCH
DOCUMENTS OR (C) ANY NEGOTIATION, PERFORMANCE OR ENFORCEMENT OF THIS NOTE, OR
ANY COLLATERAL RELATED HERETO.
BORROWER CERTIFIES THAT NEITHER LENDER NOR ANY
REPRESENTATIVE OF LENDER HAS REPRESENTED TO BORROWER THAT LENDER WILL NOT SEEK
TO ENFORCE THE WAIVER MADE BY BORROWER IN THIS PARAGRAPH.
BORROWER ACKNOWLEDGES
THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL AS NECESSARY AND
APPROPRIATE.
WINDTAMER CORPORATION
By:
/s/
Willaim A. Schmitz
Name:
William A. Schmitz
Title:
Chief
Executive Officer
Rev. 03/30/2010
Borrower's signature must be witnessed by an authorized representative of Lender
or notarized prior to returning to Lender:
Witnessed By:
/s/
Sheila M. Studebaker
Print Name:
Sheila M. Studebaker
Print Title:
Vice President
First Niagara Bank, N.A.
4
STATE OF
NEW YORK
)
)
SS:
COUNTY OF
MONROE
)
On the 26TH
day of April in the year 2010, before me, the undersigned,
personally appeared William A. Schmitz, known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), and that by his/her/their signature(s) on
the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
_
/s/
Katherine H. Karl
Notary Public
5