MATTERS RELEASED PURSUANT TO THE OTHER PROVISIONS OF THIS PARAGRAPH.
EACH CREDIT PARTY REPRESENTS AND WARRANTS TO AGENT AND LENDERS THAT IT HAS NOT
PURPORTED TO TRANSFER, ASSIGN OR OTHERWISE CONVEY ANY RIGHT, TITLE OR INTEREST
OF A CREDIT PARTY IN ANY RELEASED MATTER TO ANY OTHER PERSON AND THAT THE
FOREGOING CONSTITUTES A FULL AND COMPLETE RELEASE OF EACH CREDIT PARTY'S CLAIMS
WITH RESPECT TO ALL SUCH MATTERS. THE PROVISIONS OF THIS SECTION 9.10 AND THE
REPRESENTATIONS, WARRANTIES, RELEASES, WAIVERS, ACQUITTANCES, DISCHARGES,
COVENANTS, AGREEMENTS AND INDEMNIFICATIONS CONTAINED HEREIN (A) CONSTITUTE A
MATERIAL CONSIDERATION FOR AND INDUCEMENT TO AGENT AND LENDERS ENTERING INTO
THIS AGREEMENT, (B) DO NOT CONSTITUTE AN ADMISSION OF OR BASIS FOR ESTABLISHING
ANY DUTY, OBLIGATION OR LIABILITY OF AGENT OR ANY LENDER TO A CREDIT PARTY OR
ANY OTHER PERSON,
9
(C) DO NOT CONSTITUTE AN ADMISSION OF OR BASIS FOR ESTABLISHING ANY LIABILITY,
WRONGDOING; OR VIOLATION OF ANY OBLIGATION, DUTY OR AGREEMENT OF AGENT OR A
LENDER TO A CREDIT PARTY OR ANY OTHER PERSON, AND (D) SHALL NOT BE USED AS
EVIDENCE AGAINST AGENT OR A LENDER BY A CREDIT PARTY OR ANY OTHER PERSON FOR ANY
PURPOSE.
9.11
Waiver of Jury Trial. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN AGENT AND LENDERS AND ANY CREDIT PARTY OR ANY OF THEIR
RESPECTIVE AFFILIATES ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN THIS AGREEMENT. INSTEAD, ANY
DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
9.12
California Waivers.
Each Credit Party hereby:
(a)
expressly waives any and all benefits which might otherwise be available to such
Credit Party under California Civil Code Sections 2809, 2810, 2819, 2839, 2845
through 2847, 2849, 2850, 2899 and 3433, and California Code of Civil Procedure
Sections 580a, 580b, 580d and 726;
(b)
acknowledges its understanding that:
(i) Section 580d of the California Code of
Civil Procedure generally prohibits a deficiency judgment against a borrower
after a non-judicial foreclosure; (ii) such Credit Party's subrogation rights
may be destroyed by a non-judicial foreclosure under any mortgage (because such
Credit Party may not be able to pursue any other Credit Party for a deficiency
judgment by reason of the application of Section 580d of the California Code of
Civil Procedure); and (iii) under Union Bank v. Gradsky, 265 Cal. App. 2nd 40
(1968) and Cathay Bank v. Lee, 14 Cal.App.4th 1533 (1993), a lender may be
estopped from pursuing a guarantor for a deficiency judgment after a
non-judicial foreclosure (on the theory that a guarantor should be exonerated if
a lender materially alters the original obligation of the principal without the
consent of the guarantor or elects remedies for default which impair the
subrogation, reimbursement or contribution rights of a "surety" or other
co-obligor) absent an explicit waiver;
(c)
expressly waives all rights and defenses arising out of an election