NOT SETTLE ANY SUCH CLAIM, DEMAND, OR SUIT, IF THE LENDER SEEKS
INDEMNIFICATION THEREFOR FROM THE COMPANY, WITHOUT FIRST GIVING NOTICE TO THE
COMPANY OF THE LENDER'S DESIRE TO SETTLE AND OBTAINING THE CONSENT OF THE
COMPANY TO THE SAME, WHICH CONSENT THE COMPANY HEREBY AGREES NOT TO UNREASONABLY
WITHHOLD. ALL OBLIGATIONS OF THE COMPANY UNDER THIS SECTION 12.11 SHALL SURVIVE
THE PAYMENT OF THE NOTE AND THE OBLIGATIONS.
12.12
NO WAIVERS EXCEPT IN WRITING.
NO FAILURE OR DELAY ON THE PART OF
THE LENDER IN EXERCISING ANY POWER OR RIGHT HEREUNDER OR UNDER ANY OTHER LOAN
DOCUMENT SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE OF ANY SUCH RIGHT OR POWER, OR ANY ABANDONMENT OR DISCONTINUANCE OF
STEPS TO ENFORCE SUCH A RIGHT OR POWER, PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT OR POWER.
NO NOTICE TO OR DEMAND ON
THE COMPANY OR ANY OTHER PERSON IN ANY CASE SHALL ENTITLE THE COMPANY OR SUCH
OTHER PERSON TO ANY OTHER OR FURTHER NOTICE OR DEMAND IN SIMILAR OR OTHER
CIRCUMSTANCES.
12.13
WAIVER OF JURY TRIAL.
AS TO THIS AGREEMENT EACH OF THE COMPANY AND
LENDER HEREBY (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY A JURY, AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO
THE EXTENT THAT ANY
54
SUCH RIGHT SHALL NOW OR HEREAFTER EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY
IS SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY THE COMPANY AND THE LENDER,
AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH
ISSUE AS TO WHICH THE RIGHT OF A JURY TRIAL WOULD OTHERWISE ACCRUE. THE LENDER
AND THE COMPANY ARE HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS AGREEMENT TO
ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO
AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE FOREGOING WAIVER OF THE RIGHT TO JURY
TRIAL.
FURTHER THE COMPANY AND THE LENDER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF ANY OF THEM, RESPECTIVELY, HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, TO ANY OF THE UNDERSIGNED THAT EITHER OF THE LENDER OR THE COMPANY
WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
12.14
MULTIPLE COUNTERPARTS.
MULTIPLE COUNTERPARTS.
THIS AGREEMENT MAY
BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, ALL OF WHICH, TAKEN TOGETHER, SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
12.15
NO THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS FOR THE SOLE AND
EXCLUSIVE BENEFIT OF THE COMPANY AND LENDER.
THIS AGREEMENT DOES NOT CREATE,
AND IS NOT INTENDED TO CREATE, ANY RIGHTS IN FAVOR OF OR ENFORCEABLE BY ANY
OTHER PERSON.
THIS AGREEMENT MAY BE AMENDED OR MODIFIED BY THE AGREEMENT OF THE
COMPANY AND LENDER, WITHOUT ANY REQUIREMENT OR NECESSITY FOR NOTICE TO, OR THE
CONSENT OF OR APPROVAL OF ANY OTHER PERSON.
12.16
RELEASE OF LENDER LIABILITY.
TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW FROM TIME TO TIME IN