BY ORDER OF COURT, BY OPERATION OF
LAW OR OTHERWISE, OF THE EXERCISE OR ENFORCEMENT OF, ANY CLAIM OR DEMAND OR ANY
RIGHT, POWER OR REMEDY (WHETHER ARISING UNDER THE LOAN DOCUMENTS, AT LAW, IN
EQUITY OR OTHERWISE) WITH RESPECT TO THE OBLIGATIONS OR ANY AGREEMENT RELATING
THERETO, OR WITH RESPECT TO ANY OTHER GUARANTY OF OR SECURITY FOR THE PAYMENT OF
THE OBLIGATIONS; (II) ANY RESCISSION, WAIVER, AMENDMENT OR MODIFICATION OF, OR
ANY CONSENT TO DEPARTURE FROM, ANY OF THE TERMS OR PROVISIONS (INCLUDING
PROVISIONS RELATING TO EVENTS OF DEFAULT) OF THE CREDIT AGREEMENT, ANY OF THE
OTHER LOAN DOCUMENTS OR ANY AGREEMENT OR INSTRUMENT EXECUTED PURSUANT THERETO,
OR OF ANY OTHER GUARANTY OR SECURITY FOR THE OBLIGATIONS, IN EACH CASE WHETHER
OR NOT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, SUCH LOAN DOCUMENT OR ANY
AGREEMENT RELATING TO SUCH OTHER GUARANTY OR SECURITY; (III) THE OBLIGATIONS, OR
ANY AGREEMENT RELATING THERETO, AT ANY TIME BEING FOUND TO BE ILLEGAL, INVALID
OR UNENFORCEABLE IN ANY RESPECT; (IV) THE APPLICATION OF PAYMENTS RECEIVED FROM
ANY SOURCE TO THE PAYMENT OF ANY LIABILITY OTHER THAN THE OBLIGATIONS, EVEN
THOUGH THE LENDERS MIGHT HAVE ELECTED TO APPLY SUCH PAYMENT TO ANY PART OR ALL
OF THE OBLIGATIONS; (V) ANY CONSENT BY ANY LENDER OR THE AGENT TO THE CHANGE,
REORGANIZATION OR TERMINATION OF THE CORPORATE STRUCTURE OR EXISTENCE
12
OF ANY OTHER BORROWER, OR ANY OTHER PERSON AND TO ANY CORRESPONDING
RESTRUCTURING OF THE OBLIGATIONS; (VI) ANY FAILURE TO PERFECT OR CONTINUE
PERFECTION OF A SECURITY INTEREST IN ANY COLLATERAL WHICH SECURES ANY OF THE
OBLIGATIONS; (VII) ANY DEFENSES (EXCEPT THE DEFENSE OF FINAL PAYMENT IN FULL),
SET-OFFS OR COUNTERCLAIMS WHICH ANY BORROWER, ANY GUARANTOR OR ANY OTHER PERSON
MAY ALLEGE OR ASSERT AGAINST THE AGENT OR ANY LENDER IN RESPECT OF THE
OBLIGATIONS, INCLUDING, FOR EXAMPLE, FAILURE OF CONSIDERATION, BREACH OF
WARRANTY, STATUTE OF FRAUDS, STATUTE OF LIMITATIONS, ACCORD AND SATISFACTION AND
USURY; AND (VIII) ANY OTHER ACT OR THING OR OMISSION, OR DELAY TO DO ANY OTHER
ACT OR THING, WHICH MAY OR MIGHT IN ANY MANNER OR TO ANY EXTENT VARY THE RISK OF
ANY BORROWER AS AN OBLIGOR IN RESPECT OF THE OBLIGATIONS.
(D)
TO THE EXTENT THAT ANY BORROWER IS A
GUARANTOR OR A SURETY AS A RESULT OF THE JOINT AND SEVERAL OBLIGATIONS
HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH SUCH BORROWER HEREBY
WAIVES AND AGREES NOT TO ASSERT OR TAKE ADVANTAGE OF:
(I) ANY DEFENSE NOW
EXISTING OR HEREAFTER ARISING BASED UPON ANY LEGAL DISABILITY OR OTHER DEFENSE
OF ANY OTHER BORROWER OR ANY GUARANTOR OR OTHER PERSON, OR BY REASON OF THE
CESSATION OR LIMITATION OF THE LIABILITY OF ANY OTHER BORROWER OR ANY GUARANTOR
OR OTHER PERSON FROM ANY CAUSE OTHER THAN FULL PAYMENT AND PERFORMANCE OF ALL
OBLIGATIONS DUE UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS;
(II) ANY DEFENSE BASED UPON ANY LACK OF AUTHORITY OF THE OFFICERS, DIRECTORS,
PARTNERS OR AGENTS ACTING OR PURPORTING