AMONG EACH BORROWER, AGENT AND
LENDERS THAT THE FOREGOING WAIVERS ARE OF THE ESSENCE OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT, BUT FOR
THE PROVISIONS OF THIS SECTION 10 AND SUCH WAIVERS, AGENT AND LENDERS WOULD
DECLINE TO ENTER INTO THIS AGREEMENT.
10.3.
BENEFIT OF GUARANTY.
EACH BORROWER AGREES THAT THE PROVISIONS OF
THIS SECTION 10 ARE FOR THE BENEFIT OF AGENT AND LENDERS AND THEIR RESPECTIVE
SUCCESSORS, TRANSFEREES, ENDORSEES AND ASSIGNS, AND NOTHING HEREIN CONTAINED
SHALL IMPAIR, AS BETWEEN ANY OTHER BORROWER AND AGENT OR LENDERS, THE
OBLIGATIONS OF SUCH OTHER BORROWER UNDER THE LOAN DOCUMENTS.
10.4.
WAIVER OF SUBROGATION, ETC..
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT, AND EXCEPT AS SET
FORTH IN SECTION 10.7, EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY
AND ALL RIGHTS AT LAW OR IN EQUITY TO SUBROGATION, REIMBURSEMENT,
EXONERATION,
CONTRIBUTION, INDEMNIFICATION OR SET OFF AND ANY AND ALL DEFENSES AVAILABLE TO A
SURETY, GUARANTOR OR ACCOMMODATION CO-OBLIGOR.
EACH BORROWER ACKNOWLEDGES AND
AGREES THAT THIS WAIVER IS INTENDED TO BENEFIT AGENT AND LENDERS AND SHALL NOT
LIMIT OR OTHERWISE AFFECT SUCH BORROWER'S LIABILITY HEREUNDER OR THE
ENFORCEABILITY OF THIS SECTION 10, AND THAT AGENT, LENDERS AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS ARE INTENDED THIRD PARTY BENEFICIARIES OF THE WAIVERS AND
AGREEMENTS SET FORTH IN THIS SECTION 10.4.
10.5.
ELECTION OF REMEDIES.
IF AGENT OR ANY LENDER MAY, UNDER APPLICABLE
LAW, PROCEED TO REALIZE ITS BENEFITS UNDER ANY OF THE LOAN DOCUMENTS GIVING
AGENT OR SUCH LENDER A LIEN UPON ANY COLLATERAL, WHETHER OWNED BY ANY BORROWER
OR BY ANY OTHER PERSON, EITHER BY JUDICIAL FORECLOSURE OR BY NON-JUDICIAL SALE
OR ENFORCEMENT, AGENT OR ANY LENDER MAY, AT ITS SOLE OPTION, DETERMINE WHICH OF
ITS REMEDIES OR RIGHTS IT MAY PURSUE WITHOUT AFFECTING ANY OF ITS RIGHTS AND
REMEDIES UNDER THIS SECTION 10.
IF, IN THE EXERCISE OF ANY OF ITS RIGHTS AND
REMEDIES, AGENT OR ANY LENDER SHALL FORFEIT ANY OF ITS RIGHTS OR REMEDIES,
INCLUDING ITS RIGHT TO ENTER A DEFICIENCY
85
JUDGMENT AGAINST ANY BORROWER OR ANY OTHER PERSON, WHETHER BECAUSE OF ANY
APPLICABLE LAWS PERTAINING TO "ELECTION OF REMEDIES" OR THE LIKE, EACH BORROWER
HEREBY CONSENTS TO SUCH ACTION BY AGENT OR SUCH LENDER AND WAIVES ANY CLAIM
BASED UPON SUCH ACTION, EVEN IF SUCH ACTION BY AGENT OR SUCH LENDER SHALL RESULT
IN A FULL OR PARTIAL LOSS OF ANY RIGHTS OF SUBROGATION THAT EACH BORROWER MIGHT
OTHERWISE HAVE HAD BUT FOR SUCH ACTION BY AGENT OR SUCH LENDER.
ANY ELECTION OF
REMEDIES THAT RESULTS IN THE DENIAL OR IMPAIRMENT OF THE RIGHT OF AGENT OR ANY
LENDER TO SEEK A DEFICIENCY JUDGMENT AGAINST ANY BORROWER SHALL NOT IMPAIR ANY
OTHER BORROWER'S OBLIGATION TO PAY THE FULL AMOUNT OF THE OBLIGATIONS.
IN THE
EVENT AGENT OR ANY LENDER SHALL BID AT ANY FORECLOSURE OR TRUSTEE'S SALE OR AT
ANY PRIVATE SALE PERMITTED BY LAW OR THE LOAN DOCUMENTS, AGENT OR SUCH LENDER
MAY BID