AGAINST A MAKER, OR TO THE HOLDER OF A CLAIM AGAINST ANY PERSON, AND WHICH SUCH
BORROWER MAY HAVE OR HEREAFTER ACQUIRE AGAINST ANY PERSON IN CONNECTION WITH OR
AS A RESULT OF SUCH BORROWER'S EXECUTION, DELIVERY AND/OR PERFORMANCE OF THIS
AGREEMENT, OR ANY OTHER DOCUMENTS TO WHICH SUCH BORROWER IS A PARTY OR
OTHERWISE; (B) EXPRESSLY AND IRREVOCABLY WAIVES ANY "CLAIM" (AS SUCH TERM IS
DEFINED IN THE BANKRUPTCY CODE) OF ANY KIND AGAINST ANY OTHER BORROWER, AND
FURTHER AGREES THAT IT SHALL NOT HAVE OR ASSERT ANY SUCH RIGHTS AGAINST ANY
PERSON (INCLUDING ANY SURETY), EITHER DIRECTLY OR AS AN ATTEMPTED SET OFF TO ANY
ACTION COMMENCED AGAINST SUCH BORROWER BY AGENT OR A LENDER OR ANY OTHER PERSON;
AND (C) ACKNOWLEDGES AND AGREES (I) 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 AGREEMENT, AND (II) THAT AGENT
AND LENDERS AND THEIR SUCCESSORS AND ASSIGNS ARE INTENDED BENEFICIARIES OF THIS
WAIVER, AND THE AGREEMENTS SET FORTH IN THIS SECTION 12.13 AND THEIR RIGHTS
UNDER THIS SECTION 12.13 SHALL SURVIVE PAYMENT IN FULL OF THE OBLIGATIONS.
(E)
EACH CREDIT PARTY WAIVES THE FILING OF A
CLAIM WITH A COURT IN THE EVENT OF RECEIVERSHIP OR BANKRUPTCY OF ANY CREDIT
PARTY, AND WAIVES EVERY DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH
ANY CREDIT PARTY MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY AGENT OR
ANY LENDER IN ENFORCING THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, EVERY
DEFENSE, COUNTERCLAIM OR SETOFF WHICH SUCH CREDIT PARTY MAY NOW HAVE, OR
HEREAFTER MAY HAVE, AGAINST ANOTHER CREDIT PARTY OR ANY OTHER PARTY LIABLE TO
AGENT OR ANY LENDER IN ANY MANNER.
AS FURTHER SECURITY, ANY AND ALL DEBTS AND
LIABILITIES NOW OR HEREAFTER ARISING AND OWING TO ANY CREDIT PARTY BY ANY OTHER
CREDIT PARTY, OR TO ANY OTHER PARTY LIABLE TO AGENT OR ANY LENDER, ARE HEREBY
SUBORDINATED TO AGENT'S AND ANY SUCH LENDER'S CLAIMS AND UPON THE OCCURRENCE OF
AN EVENT OF DEFAULT ARE ASSIGNED TO AGENT FOR THE BENEFIT OF LENDERS.
EACH
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CREDIT PARTY RATIFIES AND CONFIRMS WHATEVER AGENT OR A LENDER MAY DO PURSUANT TO
THE TERMS HEREOF, AND AGREES THAT NEITHER AGENT NOR ANY LENDER SHALL BE LIABLE
FOR ANY ERROR IN JUDGMENT OR MISTAKES OF FACT OR LAW OTHER THAN WITH RESPECT TO
ITS GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT.
EACH CREDIT PARTY HEREBY
AGREES THAT IT MAY BE JOINED AS A PARTY DEFENDANT IN ANY LEGAL PROCEEDING
(INCLUDING, BUT NOT LIMITED TO, A FORECLOSURE PROCEEDING) INSTITUTED BY AGENT OR
ANY LENDER AGAINST ANY OTHER CREDIT PARTY.
(F)
SHOULD A CLAIM BE MADE UPON AGENT OR ANY
LENDER AT ANY TIME FOR REPAYMENT OF ANY AMOUNT RECEIVED BY AGENT OR ANY LENDER
IN PAYMENT OF THE OBLIGATIONS, OR ANY PART THEREOF, WHETHER RECEIVED FROM ANY
CREDIT PARTY OR RECEIVED BY AGENT OR ANY LENDER AS THE PROCEEDS OF COLLATERAL,
BY REASON OF:
(1) ANY JUDGMENT,