AS DEBTOR-IN-POSSESSION UNDER SECTION 364 OF THE BANKRUPTCY CODE OR OTHERWISE;
(G) THE DISALLOWANCE OF ANY CLAIMS OF AGENT OR ANY LENDER AGAINST ANY OBLIGOR
FOR THE REPAYMENT OF ANY OBLIGATIONS UNDER SECTION 502 OF THE BANKRUPTCY CODE OR
OTHERWISE; OR (H) ANY OTHER ACTION OR CIRCUMSTANCES THAT MIGHT OTHERWISE
CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OR DEFENSE OF A SURETY OR GUARANTOR,
EXCEPT FULL PAYMENT OF ALL OBLIGATIONS.
5.10.2
WAIVERS.
A.
EACH BORROWER EXPRESSLY WAIVES, TO THE EXTENT PERMITTED BY LAW,
ALL RIGHTS THAT IT MAY HAVE NOW OR IN THE FUTURE UNDER ANY STATUTE, AT COMMON
LAW, IN EQUITY OR OTHERWISE, TO COMPEL AGENT OR LENDERS TO MARSHAL ASSETS OR TO
PROCEED AGAINST ANY OBLIGOR, OTHER PERSON OR SECURITY FOR THE PAYMENT OR
PERFORMANCE OF ANY OBLIGATIONS BEFORE, OR AS A CONDITION TO, PROCEEDING AGAINST
SUCH BORROWER.
EACH BORROWER WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL
DEFENSES AVAILABLE TO A SURETY, GUARANTOR OR ACCOMMODATION CO-OBLIGOR OTHER THAN
FULL PAYMENT OF ALL OBLIGATIONS.
IT IS AGREED AMONG EACH BORROWER, AGENT AND
LENDERS THAT THE PROVISIONS OF THIS SECTION 5.10 ARE OF THE ESSENCE OF THE
TRANSACTION CONTEMPLATED BY THE LOAN DOCUMENTS AND THAT, BUT FOR SUCH
PROVISIONS, AGENT AND LENDERS WOULD DECLINE TO MAKE LOANS AND ISSUE LETTERS OF
CREDIT.
EACH BORROWER ACKNOWLEDGES THAT ITS GUARANTY PURSUANT TO THIS
SECTION IS NECESSARY TO THE CONDUCT AND PROMOTION OF ITS BUSINESS, AND CAN BE
EXPECTED TO BENEFIT SUCH BUSINESS.
B.
AGENT AND LENDERS MAY, IN THEIR DISCRETION, PURSUE SUCH RIGHTS
AND REMEDIES AS THEY DEEM APPROPRIATE, INCLUDING REALIZATION UPON COLLATERAL,
WITHOUT AFFECTING ANY RIGHTS AND REMEDIES UNDER THIS SECTION 5.10.
IF, IN
TAKING ANY ACTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS OR REMEDIES,
AGENT OR ANY LENDER SHALL FORFEIT ANY OTHER RIGHTS OR REMEDIES,
56
INCLUDING THE RIGHT TO ENTER A DEFICIENCY JUDGMENT AGAINST ANY BORROWER OR OTHER
PERSON, WHETHER BECAUSE OF ANY APPLICABLE LAWS PERTAINING TO "ELECTION OF
REMEDIES" OR OTHERWISE, EACH BORROWER CONSENTS TO SUCH ACTION AND WAIVES, TO THE
EXTENT PERMITTED BY LAW, ANY CLAIM BASED UPON IT, EVEN IF THE ACTION MAY RESULT
IN LOSS OF ANY RIGHTS OF SUBROGATION THAT ANY BORROWER MIGHT OTHERWISE HAVE
HAD.
ANY ELECTION OF REMEDIES THAT RESULTS IN 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.
EACH BORROWER WAIVES, TO THE EXTENT PERMITTED BY LAW, ALL RIGHTS
AND DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES, SUCH AS NONJUDICIAL
FORECLOSURE WITH RESPECT TO ANY SECURITY FOR THE OBLIGATIONS, EVEN THOUGH THAT
ELECTION OF REMEDIES DESTROYS SUCH BORROWER'S RIGHTS OF SUBROGATION AGAINST ANY
OTHER PERSON.
AGENT MAY BID ALL OR A PORTION OF THE OBLIGATIONS AT ANY
FORECLOSURE OR TRUSTEE'S SALE OR AT ANY PRIVATE SALE, AND THE AMOUNT OF SUCH BID
NEED NOT BE PAID BY AGENT BUT SHALL BE CREDITED AGAINST THE OBLIGATIONS.
THE
AMOUNT OF THE SUCCESSFUL BID