CONTROL OF THE BORROWERS OR ANY GUARANTOR, WHICH ANY OF THEM, NOW HAS OR
HEREAFTER CAN OR MAY HAVE FOR OR BY REASON OF ANY CAUSE, MATTER OR THING
WHATSOEVER, FROM THE BEGINNING OF THE WORLD TO THE DATE HEREOF; PROVIDED,
HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION 12 SHALL RELIEVE THE LENDERS OF
THEIR OBLIGATIONS UNDER THIS AGREEMENT.
13.
WAIVERS.
IN CONSIDERATION OF THE
ACCOMMODATIONS BEING MADE AVAILABLE BY THE LENDERS TO OR FOR THE BENEFIT OF THE
BORROWERS AND GUARANTOR UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE
FORBEARANCE ON THE PART OF THE LENDERS:
9
(A)
THE BORROWERS AND GUARANTOR HEREBY WAIVE
THE BENEFIT OF ANY THEORY OR STATUTE REQUIRING THE MARSHALING OF ASSETS OR OTHER
SIMILAR LEGAL DOCTRINE AND AGREE THAT UPON A TERMINATING EVENT THE AGENT AND THE
LENDERS MAY EXERCISE THEIR RIGHTS AGAINST THE COLLATERAL AND APPLY THE PROCEEDS
THEREOF TO ANY OF THE OBLIGATIONS, AS AFORESAID.
(B)
THE BORROWERS AND GUARANTOR HEREBY AGREE
THAT, TO THE EXTENT THE BORROWERS AND GUARANTOR WOULD OTHERWISE HAVE A RIGHT OF
NOTIFICATION OF SALE UNDER SECTION 9-611 OF THE UNIFORM COMMERCIAL CODE AS
ENACTED IN ANY APPLICABLE STATE, TEN DAYS' PRIOR WRITTEN NOTICE OF ANY SALE OF
THE COLLATERAL SHALL BE SUFFICIENT TO SATISFY ANY SUCH NOTICE REQUIREMENT UNDER
SECTION 9-611 OF THE UNIFORM COMMERCIAL CODE.
14.
RELATIONSHIP.
THE BORROWERS AND GUARANTOR
AGREE THAT THE RELATIONSHIP BETWEEN THE AGENT, THE LENDERS, THE BORROWERS AND
GUARANTOR IS THAT OF CREDITOR AND DEBTOR AND NOT THAT OF PARTNERS OR JOINT
VENTURERS.
THIS AGREEMENT DOES NOT CONSTITUTE A PARTNERSHIP AGREEMENT, OR ANY
OTHER ASSOCIATION BETWEEN THE AGENT, THE LENDERS, THE BORROWERS AND GUARANTOR.
THE BORROWERS AND GUARANTOR ACKNOWLEDGE THAT THE AGENT AND THE LENDERS HAVE
ACTED AT ALL TIMES ONLY AS CREDITORS TO THE BORROWERS AND GUARANTOR WITHIN THE
NORMAL AND USUAL SCOPE OF THE ACTIVITIES NORMALLY UNDERTAKEN BY A CREDITOR AND
IN NO EVENT HAS THE AGENT OR ANY LENDER ATTEMPTED TO EXERCISE ANY CONTROL OVER
THE BORROWERS OR GUARANTOR OR THEIR RESPECTIVE BUSINESSES OR AFFAIRS.
THE
BORROWERS OR GUARANTOR FURTHER ACKNOWLEDGE THAT THE AGENT AND THE LENDERS HAVE
NOT TAKEN OR FAILED TO TAKE ANY ACTION UNDER OR IN CONNECTION WITH THEIR RIGHTS
UNDER THE CREDIT AGREEMENT AND THE LOAN DOCUMENTS THAT IN ANY WAY OR TO ANY
EXTENT HAVE INTERFERED WITH OR ADVERSELY AFFECT THE BORROWERS' AND/OR
GUARANTOR'S OWNERSHIP OF THE COLLATERAL.
15.
NOTICES.
ALL NOTICES, REQUESTS OR OTHER
COMMUNICATIONS REQUIRED OR DESIRED TO BE GIVEN HEREUNDER SHALL BE SENT BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO THE
ADDRESSEE AT THE ADDRESS LISTED IN THE CREDIT AGREEMENT OR AT SUCH OTHER ADDRESS
AS ANY PARTY MAY DESIGNATE IN WRITING, OR ANY SUCH NOTICE, REQUEST OR OTHER
COMMUNICATION MAY BE SENT BY ANY OTHER MEANS, BUT NO SUCH NOTICE, REQUEST OR
OTHER COMMUNICATION SHALL BE DEEMED DELIVERED UNTIL IT IS ACTUALLY RECEIVED BY
THE INTENDED RECIPIENT.
16.
NO THIRD PARTY BENEFICIARIES.
THIS
AGREEMENT IS MADE AND ENTERED INTO FOR THE SOLE PROTECTION AND BENEFIT