STIPULATION ENTERED INTO BY LENDER WITH ANY OTHER BORROWER ENTITY WITH RESPECT
TO THE PROVISION OF ADEQUATE PROTECTION IN ANY BANKRUPTCY PROCEEDING;
(M)
ANY DEFENSE BASED UPON ANY BORROWING OR ANY GRANT
OF A SECURITY INTEREST UNDER SECTION 364 OF THE BANKRUPTCY CODE BY ANY OTHER
BORROWER ENTITY;
(N)
ANY DEFENSE BASED UPON THE AVOIDANCE OF ANY
SECURITY INTEREST GRANTED BY ANY OTHER BORROWER ENTITY IN FAVOR OF LENDER FOR
ANY REASON;
(O)
ANY DEFENSE BASED UPON ANY BANKRUPTCY,
INSOLVENCY, REORGANIZATION, ARRANGEMENT, READJUSTMENT OF DEBT, LIQUIDATION OR
DISSOLUTION PROCEEDING, INCLUDING ANY DISCHARGE OF, OR BAR OR STAY AGAINST
COLLECTING, ALL OR ANY OF THE OBLIGATIONS EVIDENCED BY THE NOTE OR OWING UNDER
ANY OF THE LOAN DOCUMENTS; AND
(P)
ANY DEFENSE OR BENEFIT BASED UPON ANY
BORROWER ENTITY'S, OR ANY OTHER PARTY'S, RESIGNATION OF THE PORTION OF ANY
OBLIGATION SECURED BY THE PLEDGE AGREEMENT TO BE SATISFIED BY ANY PAYMENT FROM
ANY OTHER BORROWER ENTITY OR ANY SUCH PARTY.
(X)
EACH BORROWER ENTITY WAIVES:
(A)
ALL RIGHTS AND DEFENSES ARISING OUT OF AN
ELECTION OF REMEDIES BY LENDER EVEN THOUGH THE ELECTION OF REMEDIES, SUCH AS
NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR THE LOAN OR ANY OTHER
AMOUNTS OWING UNDER THE LOAN DOCUMENTS, MAY HAVE DESTROYED SUCH BORROWER
ENTITY'S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST ANY OTHER BORROWER
ENTITY;
(B)
INTENTIONALLY OMITTED; AND
(C)
ANY CLAIM OR OTHER RIGHT WHICH ANY BORROWER
ENTITY MIGHT NOW HAVE OR HEREAFTER ACQUIRE AGAINST ANY OTHER BORROWER ENTITY OR
ANY OTHER PERSON THAT ARISES FROM THE EXISTENCE OR PERFORMANCE OF ANY
OBLIGATIONS UNDER THE NOTE, THIS AGREEMENT, THE PLEDGE AGREEMENT OR THE
159
OTHER LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY OF THE FOLLOWING:
(I) ANY RIGHT OF SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION (OTHER
THAN THE RIGHT TO CONTRIBUTION PROVIDED FOR IN THIS SECTION 9.9), OR
INDEMNIFICATION; OR (II) ANY RIGHT TO PARTICIPATE IN ANY CLAIM OR REMEDY OF
LENDER AGAINST ANY OTHER BORROWER ENTITY OR ANY COLLATERAL SECURITY THEREFOR,
WHETHER OR NOT SUCH CLAIM, REMEDY OR RIGHT ARISES IN EQUITY OR UNDER CONTRACT,
STATUTE OR COMMON LAW.
Section 9.10
Certain Additional Rights of Lender;
VCOC.
Subject to the terms hereof, Lender shall have the right:
(A)
TO ROUTINELY CONSULT WITH BORROWER'S
MANAGEMENT REGARDING THE SIGNIFICANT BUSINESS ACTIVITIES AND BUSINESS AND
FINANCIAL DEVELOPMENTS OF BORROWER; PROVIDED, HOWEVER, THAT SUCH CONSULTATIONS
SHALL NOT INCLUDE DISCUSSIONS OF ENVIRONMENTAL COMPLIANCE PROGRAMS OR DISPOSAL
OF HAZARDOUS SUBSTANCES. ROUTINE CONSULTATION MEETINGS MAY OCCUR NO MORE
FREQUENTLY THAN QUARTERLY, WITH LENDER HAVING THE RIGHT TO CALL SPECIAL MEETINGS
AT ANY REASONABLE TIME (BUT NOT MORE FREQUENTLY THAN ONCE PER QUARTER) AND UPON
REASONABLE ADVANCE NOTICE. BORROWER SHALL HAVE NO OBLIGATION TO ADHERE TO ANY
ADVICE PROPOSED BY LENDER, EXCEPT WHERE OTHERWISE SPECIFICALLY REQUIRED
ELSEWHERE IN THE LOAN DOCUMENTS;
(B)
IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT, TO EXAMINE THE BOOKS AND RECORDS OF BORROWER AT ANY REASONABLE TIMES
UPON REASONABLE NOTICE;
(C)
IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT, TO RECEIVE FINANCIAL REPORTS AND OTHER STATEMENTS AS PROVIDED