7.09.
WAIVER OF COUNTERCLAIMS, ETC.
BORROWER HEREBY WAIVES THE RIGHT
TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY ACTION OR
PROCEEDING BROUGHT AGAINST IT BY LENDER OR ITS AGENTS, AND WAIVES TRIAL BY JURY
IN ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER OR
IN ANY COUNTERCLAIM BORROWER MAY BE PERMITTED TO ASSERT HEREUNDER OR WHICH MAY
BE ASSERTED BY LENDER OR ITS AGENTS, AGAINST BORROWER, OR IN ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE
DEBT.
SECTION 7.10.
HEADINGS; CONSTRUCTION OF DOCUMENTS, ETC.
THE HEADINGS AND
CAPTIONS OF VARIOUS PARAGRAPHS OF THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND ARE NOT TO BE CONSTRUED AS DEFINING OR LIMITING, IN ANY WAY,
THE SCOPE OR INTENT OF THE PROVISIONS HEREOF.
BORROWER ACKNOWLEDGES THAT IT WAS
REPRESENTED BY COMPETENT COUNSEL IN CONNECTION WITH THE NEGOTIATION AND DRAFTING
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT NEITHER THIS AGREEMENT
NOR THE OTHER LOAN DOCUMENTS SHALL BE SUBJECT TO THE PRINCIPLE OF CONSTRUING THE
MEANING AGAINST THE PERSON WHO DRAFTED SAME.
SECTION 7.11.
SOLE DISCRETION OF LENDER.
WHENEVER LENDER EXERCISES ANY RIGHT
GIVEN TO IT TO APPROVE OR DISAPPROVE, OR ANY ARRANGEMENT OR TERM IS TO BE
SATISFACTORY TO LENDER, THE DECISION OF LENDER TO APPROVE OR DISAPPROVE OR TO
DECIDE THAT ARRANGEMENTS OR TERMS ARE SATISFACTORY OR NOT SATISFACTORY SHALL BE
IN THE SOLE DISCRETION OF LENDER AND SHALL BE FINAL AND CONCLUSIVE, EXCEPT AS
MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN.
SECTION 7.12.
APPLICABLE LAW.
THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF
NEW YORK AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK
AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW YORK WHICH
STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING
48
TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW
OF THE UNITED STATES OF AMERICA.
SECTION 7.13.
ACTIONS AND PROCEEDINGS.
LENDER HAS THE RIGHT TO APPEAR IN AND
DEFEND ANY ACTION OR PROCEEDING BROUGHT WITH RESPECT TO THE COLLATERAL IN ITS
OWN NAME OR, IF REQUIRED BY LEGAL REQUIREMENTS OR, IF IN LENDER'S REASONABLE
JUDGMENT, IT IS NECESSARY, IN THE NAME AND ON BEHALF OF BORROWER, WHICH LENDER
BELIEVES WILL ADVERSELY AFFECT THE COLLATERAL OR THIS AGREEMENT AND TO BRING ANY
ACTION OR PROCEEDINGS, IN ITS NAME OR IN THE NAME AND ON BEHALF OF BORROWER,
WHICH LENDER, IN ITS DISCRETION, DECIDES SHOULD BE BROUGHT TO PROTECT ITS
INTEREST IN THE NOTE, THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 7.14.
USURY LAWS.
THIS AGREEMENT AND THE NOTE ARE SUBJECT TO THE
EXPRESS CONDITION,