SOUGHT, AND THEN SUCH
WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE, AND FOR THE
PURPOSE, FOR WHICH GIVEN.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NO
NOTICE TO OR DEMAND ON BORROWER SHALL ENTITLE BORROWER TO ANY OTHER OR FUTURE
NOTICE OR DEMAND IN THE SAME, SIMILAR OR OTHER CIRCUMSTANCES.
NEITHER ANY
FAILURE NOR ANY DELAY ON THE PART OF LENDER IN INSISTING UPON STRICT PERFORMANCE
OF ANY TERM, CONDITION, COVENANT OR AGREEMENT, OR EXERCISING ANY RIGHT, POWER,
REMEDY OR PRIVILEGE HEREUNDER, OR UNDER ANY OTHER LOAN DOCUMENT, SHALL OPERATE
AS OR CONSTITUTE A WAIVER THEREOF, NOR SHALL A SINGLE OR PARTIAL EXERCISE
THEREOF PRECLUDE ANY OTHER FUTURE EXERCISE, OR THE EXERCISE OF ANY OTHER RIGHT,
POWER, REMEDY OR PRIVILEGE.
IN PARTICULAR, AND NOT BY WAY OF LIMITATION, BY
ACCEPTING PAYMENT AFTER THE DUE DATE OF ANY AMOUNT PAYABLE UNDER ANY LOAN
DOCUMENT, LENDER SHALL NOT BE DEEMED TO HAVE WAIVED ANY RIGHT EITHER
82
TO REQUIRE PROMPT PAYMENT WHEN DUE OF ALL OTHER AMOUNTS DUE UNDER THE LOAN
DOCUMENTS, OR TO DECLARE AN EVENT OF DEFAULT FOR FAILURE TO EFFECT PROMPT
PAYMENT OF ANY SUCH OTHER AMOUNT.
10.8
TRIAL BY JURY.
BORROWER AND LENDER HEREBY AGREE NOT
TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE 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.
EITHER PARTY IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY THE OTHER.
10.9
HEADINGS/EXHIBITS.
THE SECTION HEADINGS IN THIS
AGREEMENT ARE INCLUDED HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT
CONSTITUTE A PART OF THIS AGREEMENT FOR ANY OTHER PURPOSE.
THE EXHIBITS
ATTACHED HERETO, ARE HEREBY INCORPORATED BY REFERENCE AS A PART OF THE AGREEMENT
WITH THE SAME FORCE AND EFFECT AS IF SET FORTH IN THE BODY HEREOF.
10.10
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.
10.11
PREFERENCES.
UPON THE OCCURRENCE AND CONTINUANCE OF AN
EVENT OF DEFAULT, LENDER SHALL HAVE THE CONTINUING AND EXCLUSIVE RIGHT TO APPLY
ANY AND ALL PAYMENTS BY BORROWER TO ANY PORTION OF THE DEBT.
TO THE EXTENT
BORROWER MAKES A PAYMENT TO LENDER, OR LENDER RECEIVES PROCEEDS OF ANY
COLLATERAL, WHICH IS IN WHOLE OR IN