UNDERSTOOD BY THE AGENT OR
ANY LENDER OR ANY BORROWER.
EACH BORROWER AGREES THAT THE PAYMENT AND
PERFORMANCE OF ALL OBLIGATIONS OR ANY PART THEREOF OR OTHER ACT WHICH TOLLS ANY
STATUTE OF LIMITATIONS APPLICABLE TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS
SHALL SIMILARLY OPERATE TO TOLL THE STATUTE OF LIMITATIONS APPLICABLE TO SUCH
BORROWER'S LIABILITY HEREUNDER.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING OR ANY OTHER PROVISION HEREOF, EACH BORROWER FURTHER WAIVES ANY AND
ALL RIGHTS AND DEFENSES THAT SUCH BORROWER MAY HAVE BECAUSE THE DEBT OF THE
BORROWERS IS SECURED BY REAL PROPERTY OF OTHER BORROWERS; THIS MEANS, AMONG
OTHER THINGS, THAT:
(1) THE LENDERS MAY COLLECT FROM SUCH BORROWER WITHOUT
FIRST FORECLOSING ON ANY REAL OR PERSONAL PROPERTY COLLATERAL PLEDGED BY ANY
OTHER BORROWER, (2) IF THE AGENT OR ANY LENDER FORECLOSES ON ANY REAL PROPERTY
COLLATERAL PLEDGED BY ANY OTHER BORROWER, THEN (A) THE AMOUNT OF THE DEBT MAY BE
REDUCED ONLY BY THE PRICE FOR WHICH THAT COLLATERAL IS SOLD AT THE FORECLOSURE
SALE, EVEN IF THE COLLATERAL IS WORTH MORE THAN THE SALE PRICE, AND (B) THE
AGENT OR ANY LENDER MAY COLLECT FROM SUCH BORROWER EVEN IF THE AGENT OR ANY
LENDER, BY FORECLOSING ON THE REAL PROPERTY COLLATERAL, HAS DESTROYED ANY RIGHT
SUCH BORROWER MAY HAVE TO COLLECT FROM ANY OTHER BORROWER.
THE FOREGOING
SENTENCE IS AN UNCONDITIONAL AND IRREVOCABLE WAIVER OF ANY RIGHTS AND DEFENSES
EACH BORROWER MAY HAVE BECAUSE THE OBLIGATIONS ARE SECURED BY REAL PROPERTY OF
ANY OTHER BORROWER.
EACH BORROWER ACKNOWLEDGES AND AGREES THAT CALIFORNIA CIVIL
CODE SECTION 2856
13
AUTHORIZES AND VALIDATES WAIVERS OF A GUARANTOR'S RIGHTS OF SUBROGATION AND
REIMBURSEMENT AND WAIVERS OF CERTAIN OTHER RIGHTS AND DEFENSES AVAILABLE TO A
GUARANTOR UNDER CALIFORNIA LAW.
BASED ON THE PRECEDING SENTENCE AND WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING WAIVERS CONTAINED IN THIS SUBPARAGRAPH
OR ANY OTHER PROVISION HEREOF, EACH BORROWER EXPRESSLY WAIVES TO THE EXTENT
PERMITTED BY LAW ANY AND ALL RIGHTS AND DEFENSES (EXCEPT THE DEFENSE OF
INDEFEASIBLE FINAL PAYMENT IN FULL), INCLUDING WITHOUT LIMITATION ANY RIGHTS OF
SUBROGATION, REIMBURSEMENT, INDEMNIFICATION AND CONTRIBUTION (EXCEPT
CONTRIBUTION PURSUANT TO THIS AGREEMENT), WHICH MIGHT OTHERWISE BE AVAILABLE TO
SUCH BORROWER UNDER CALIFORNIA CIVIL CODE SECTIONS 2787 TO 2855, INCLUSIVE, 2899
AND 3433 AND UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580A, 580B, 580D
AND 726 (OR ANY OF SUCH SECTIONS), OR ANY OTHER JURISDICTION TO THE EXTENT THE
SAME ARE APPLICABLE TO THIS AGREEMENT OR THE AGREEMENTS, COVENANTS OR
OBLIGATIONS OF ANY BORROWER HEREUNDER.
(E)
EACH BORROWER IS FULLY AWARE OF THE FINANCIAL CONDITION OF THE FRC
BORROWERS OR THE FMC BORROWERS, AS APPLICABLE, AND IS EXECUTING AND DELIVERING
THIS AGREEMENT BASED SOLELY UPON SUCH BORROWER'S OWN INDEPENDENT INVESTIGATION
OF ALL MATTERS PERTINENT HERETO AND IS NOT RELYING IN ANY MANNER UPON ANY
REPRESENTATION OR STATEMENT BY THE AGENT OR ANY LENDER.
EACH BORROWER HEREBY
ASSUMES FULL RESPONSIBILITY FOR OBTAINING ANY ADDITIONAL INFORMATION CONCERNING
THE FINANCIAL CONDITION OF THE FRC BORROWERS, THE FMC BORROWERS OR ANY