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
88
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 PART
SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE
OR REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER OR ANY OTHER PARTY UNDER ANY
BANKRUPTCY LAW, STATE OR FEDERAL LAW, COMMON LAW OR EQUITABLE CAUSE, THEN, TO
THE EXTENT OF SUCH PAYMENT OR PROCEEDS RECEIVED, THE DEBT OR PART THEREOF
INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUE IN FULL FORCE AND EFFECT,
AS IF SUCH PAYMENT OR PROCEEDS HAD NOT BEEN RECEIVED BY LENDER.
THIS PROVISION
SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND THE REPAYMENT
OF THE DEBT.
10.12
WAIVER OF NOTICE.
BORROWER SHALL NOT BE ENTITLED TO ANY NOTICES OF
ANY NATURE WHATSOEVER FROM LENDER EXCEPT WITH RESPECT TO MATTERS FOR WHICH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT SPECIFICALLY AND EXPRESSLY REQUIRES THE
GIVING OF NOTICE BY LENDER TO BORROWER AND EXCEPT WITH RESPECT TO MATTERS FOR
WHICH BORROWER IS NOT, PURSUANT TO APPLICABLE LEGAL REQUIREMENTS, PERMITTED TO
WAIVE THE GIVING OF NOTICE.
BORROWER HEREBY EXPRESSLY WAIVES THE RIGHT TO
RECEIVE ANY NOTICE FROM LENDER WITH RESPECT TO ANY MATTER FOR WHICH NO LOAN
DOCUMENT SPECIFICALLY AND EXPRESSLY REQUIRES THE GIVING OF NOTICE BY LENDER TO
BORROWER.
10.13
REMEDIES OF BORROWER.
IF A CLAIM OR ADJUDICATION IS MADE THAT LENDER
OR ANY OF ITS AGENTS, INCLUDING SERVICER, HAS ACTED UNREASONABLY OR UNREASONABLY
DELAYED ACTING IN ANY CASE WHERE BY LAW OR UNDER ANY LOAN DOCUMENT, LENDER OR
ANY SUCH AGENT, AS THE CASE MAY BE, HAS AN OBLIGATION TO ACT REASONABLY OR
PROMPTLY, BORROWER AGREES THAT NEITHER LENDER NOR ITS AGENTS, INCLUDING
SERVICER, SHALL BE LIABLE FOR ANY MONETARY DAMAGES, AND BORROWER'S SOLE REMEDY
SHALL BE TO COMMENCE AN ACTION SEEKING INJUNCTIVE RELIEF OR DECLARATORY
JUDGMENT.
ANY ACTION OR PROCEEDING TO DETERMINE WHETHER LENDER HAS ACTED
REASONABLY SHALL BE DETERMINED BY