Common use of Waivers and Agreements Clause in Contracts

Waivers and Agreements. The Guarantor hereby unconditionally: 4.01 Waives any requirement that the Lender first seek to enforce remedies against the Borrower or any other person or entity before seeking to enforce this Agreement against either Guarantor. 4.02 Waives any requirement that the Lender first make demand upon, or seek to enforce remedies against, to Guarantor, or against any other guarantor of any of the Guaranteed Obligations in any particular order, before demanding payment from, or seeking to enforce this Agreement against, the Guarantor or any other guarantor. The Guarantor acknowledges that the Lender, in the Lender's sole discretion, may enforce remedies against the Guarantor pursuant to this Agreement and not enforce similar remedies against any other guarantor with respect to the Guaranteed Obligations or vice versa. The Guarantor further acknowledges that the enforcement of remedies against the Guarantor in lieu of enforcing remedies against any other guarantor, or vice versa, shall not affect the validity or enforceability of the Lender's rights and/or remedies under this Agreement or any other guaranty agreement guarantying any of the Guaranteed Obligations. 4.03 Waives any requirement that the Lender first seek to enforce remedies against any property in which the Lender may have any interest securing any (a) indebtedness which either Guarantor has guaranteed under this Agreement, or (b) guaranty obligations of any other guarantor, or enforcing any such rights in any particular order, before demanding payment from, or seeking to enforce this Agreement against, either Guarantor. 4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all of the Guaranteed Obligations, including, without limitation, all obligations of the Borrower under the Revolving Credit Note, and all other obligations of the Borrower under the Loan Agreement and the other Borrower Documents, or by payment in full by the Guarantor of the Guaranteed Obligations in accordance with the terms of this Agreement. 4.05 Agrees that this Agreement shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, the Loan Agreement, any other of the Borrower Documents, or any limitation of the liability of the Borrower thereunder, or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever. 4.06 Waives any obligation that the Lender might otherwise have to marshal assets or to proceed against any particular persons or assets in any particular order. 4.07 Waives any defenses either Guarantor may have arising out of or in any way related to any or all of the following: (a) Any failure on the part of the Lender to perfect the Lender's security interest in or lien against, or any lack of diligence in connection with or failure to foreclose or realize upon, any property, whether real or personal, tangible or intangible, now or hereafter granted to the Lender as collateral security for any of (1) the Borrower's liabilities or obligations, or (2) either Guarantor's liabilities or obligations hereunder, or (3) any other guarantor's liabilities or obligations under any other guaranty agreement relating to all or any part of the Guaranteed Obligations. (b) The voluntary or involuntary discharge or release of any of the Guaranteed Obligations, or of any co-maker, accommodation party, surety or any other person or entity, including but not limited to, any other guarantor, whether voluntarily or by reason of bankruptcy, insolvency, or other laws affecting the rights of creditors generally or otherwise. (c) The receipt by the Lender of any provisional, invalid or refundable payment if such payment is thereafter revoked or if such payment is returned by the Lender to or for the benefit of the Borrower, either Guarantor or any other guarantor or the creditors of either. (d) Any right of set-off or counterclaim against the Lender which would otherwise impair the Lender's rights against either Guarantor or any other guarantor. (e) Any change in the composition, ownership or business of the Borrower, the Guarantor or any other guarantor.

Waivers and Agreements. The Guarantor Guarantors hereby unconditionally: 4.01 Waives Waive any requirement that the Lender Agent Bank first seek to enforce remedies against the Borrower or any other person or entity before seeking to enforce this Agreement against either Guarantorthe Guarantors. 4.02 Waives Waive any requirement that the Lender Agent Bank first make demand upon, or seek to enforce remedies against, to Guarantorany other Guarantors, or against any other guarantor of any of the Guaranteed Guarantied Obligations in any particular order, before demanding payment from, or seeking to enforce this Agreement against, the Guarantor or any other guarantora particular Guarantor. The Each Guarantor acknowledges that the LenderAgent Bank, in the LenderAgent Bank's sole discretion, may enforce remedies against the any one Guarantor pursuant to this Agreement and not enforce similar remedies against any other guarantor Guarantors with respect to the Guaranteed Guarantied Obligations or vice versa. The Guarantor Guarantors further acknowledges acknowledge that the enforcement of remedies against the Guarantor Guarantors in lieu of enforcing remedies against any other guarantor, or vice versa, shall not affect the validity or enforceability of the LenderAgent Bank's rights and/or remedies under this Agreement or any other guaranty agreement guarantying any of the Guaranteed Guarantied Obligations. 4.03 Waives Waive any requirement that the Lender Agent Bank first seek to enforce remedies against any property in which the Lender Agent Bank may have any interest securing any (a) indebtedness which either Guarantor has the Guarantors have guaranteed under this Agreement, or (b) guaranty obligations of any other guarantor, or enforcing any such rights in any particular order, before demanding payment from, or seeking to enforce this Agreement against, either Guarantorthe Guarantors. 4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all of the Guaranteed Obligations, including, without limitation, all obligations of the Borrower under the Revolving Credit Note, and all other obligations of the Borrower under the Loan Agreement and the other Borrower Documents, or by payment in full by the Guarantor of the Guaranteed Obligations in accordance with the terms of this Agreement. 4.05 Agrees that this Agreement shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, the Loan Agreement, any other of the Borrower Documents, or any limitation of the liability of the Borrower thereunder, or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever. 4.06 Waives any obligation that the Lender might otherwise have to marshal assets or to proceed against any particular persons or assets in any particular order. 4.07 Waives any defenses either Guarantor may have arising out of or in any way related to any or all of the following: (a) Any failure on the part of the Lender to perfect the Lender's security interest in or lien against, or any lack of diligence in connection with or failure to foreclose or realize upon, any property, whether real or personal, tangible or intangible, now or hereafter granted to the Lender as collateral security for any of (1) the Borrower's liabilities or obligations, or (2) either Guarantor's liabilities or obligations hereunder, or (3) any other guarantor's liabilities or obligations under any other guaranty agreement relating to all or any part of the Guaranteed Obligations. (b) The voluntary or involuntary discharge or release of any of the Guaranteed Obligations, or of any co-maker, accommodation party, surety or any other person or entity, including but not limited to, any other guarantor, whether voluntarily or by reason of bankruptcy, insolvency, or other laws affecting the rights of creditors generally or otherwise. (c) The receipt by the Lender of any provisional, invalid or refundable payment if such payment is thereafter revoked or if such payment is returned by the Lender to or for the benefit of the Borrower, either Guarantor or any other guarantor or the creditors of either. (d) Any right of set-off or counterclaim against the Lender which would otherwise impair the Lender's rights against either Guarantor or any other guarantor. (e) Any change in the composition, ownership or business of the Borrower, the Guarantor or any other guarantor.

Waivers and Agreements. The (a) Guarantor hereby unconditionally: 4.01 Waives any requirement that the Lender first seek to enforce remedies against the Borrower or irrevocably waives promptness, diligence, notice of acceptance and any other person or entity before seeking notice with respect to enforce this Agreement against either Guarantor. 4.02 Waives any requirement that the Lender first make demand upon, or seek to enforce remedies against, to Guarantor, or against any other guarantor of any of the Guaranteed Obligations in and this Guaranty and any particular orderrequirement that Lender protect, before demanding payment fromsecure, perfect or seeking to enforce this Agreement against, the Guarantor insure any Lien or any property subject thereto or exhaust any right or take any action against Swift or any other guarantor. The Person or any Collateral. (b) Guarantor acknowledges hereby irrevocably agrees that any claim or other rights that it may now or hereafter acquire against Swift or any guarantor of Swift's obligations under the LenderNote that arise from the existence, in the Lender's sole discretionpayment, may enforce remedies against the Guarantor pursuant to this Agreement and not enforce similar remedies against any other guarantor with respect to the Guaranteed Obligations performance or vice versa. The Guarantor further acknowledges that the enforcement of remedies against the Guarantor in lieu of enforcing remedies against any other guarantor, or vice versa, shall not affect the validity or enforceability of the LenderGuarantor's rights and/or remedies obligations under this Agreement Guaranty or any other guaranty agreement guarantying any of the Guaranteed Obligations. 4.03 Waives any requirement that the Lender first seek to enforce remedies against any property in which the Lender may have any interest securing any (a) indebtedness which either Guarantor has guaranteed under this Agreement, or (b) guaranty obligations of any other guarantor, or enforcing any such rights in any particular order, before demanding payment from, or seeking to enforce this Agreement against, either Guarantor. 4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all of the Guaranteed ObligationsLoan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Lender against Swift or any such guarantor or any Pledged Shares, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from Swift or any such guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, shall be subordinated to the payment in full of all amounts due and owing and the performance of all obligations of the Borrower under the Revolving Credit Note, and all other obligations of the Borrower under the Loan Agreement Note and the other Borrower Loan Documents and shall not be made or exercised until the date Swift has indefeasibly paid in full in cash all amounts due and owing under the Note and the other Loan Documents, or by . If any amount shall be paid to Guarantor in violation of the preceding sentence at any time prior to the later of the indefeasible payment in full by the Guarantor of the Guaranteed Obligations and all other amounts payable under this Guaranty and the Maturity Date, such amount shall be held in trust for the benefit of Lender and shall forthwith be applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement. 4.05 Agrees that this Agreement shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, the Loan Agreement, any other of the Borrower Documents, or any limitation of the liability of the Borrower thereunder, or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever. 4.06 Waives any obligation that the Lender might otherwise have to marshal assets or to proceed against any particular persons or assets in any particular order. 4.07 Waives any defenses either Guarantor may have arising out of or in any way related to any or all of the following: (a) Any failure on the part of the Lender to perfect the Lender's security interest in or lien against, or any lack of diligence in connection with or failure to foreclose or realize upon, any property, whether real or personal, tangible or intangible, now or hereafter granted to the Lender held as collateral security Collateral for any of (1) the Borrower's liabilities or obligations, or (2) either Guarantor's liabilities or obligations hereunder, or (3) any other guarantor's liabilities or obligations under any other guaranty agreement relating to all or any part of the Guaranteed Obligations. (b) The voluntary or involuntary discharge or release of any of the Guaranteed Obligations, or of any co-maker, accommodation party, surety or any other person or entity, including but not limited to, any other guarantor, whether voluntarily or by reason of bankruptcy, insolvency, Obligations or other laws affecting the rights of creditors generally or otherwiseamounts payable under this Guaranty thereafter arising. (c) The receipt Guarantor acknowledges that it will receive direct and indirect benefits from the financing accommodations contemplated by the Lender Loan Documents and that the waivers set forth in this Section 3 are knowingly made in contemplation of any provisional, invalid or refundable payment if such payment is thereafter revoked or if such payment is returned by the Lender to or for the benefit of the Borrower, either Guarantor or any other guarantor or the creditors of eitherbenefits. (d) Any right of set-off or counterclaim against the Lender which would otherwise impair the Lender's rights against either Guarantor or any other guarantor. (e) Any change in the composition, ownership or business of the Borrower, the Guarantor or any other guarantor.

Waivers and Agreements. The (a) Guarantor hereby unconditionally: 4.01 Waives any requirement that waives to the Lender first seek to enforce remedies against extent permitted by law: (i) all notices (other than those expressly provided in the Borrower or any other person or entity before seeking to enforce this Agreement against either Guarantor. 4.02 Waives any requirement that the Lender first make demand upon, or seek to enforce remedies against, Loan Documents) to Guarantor, to Borrower or against to any other guarantor Person, including, but not limited to, notices of the acceptance of this Guaranty or the creation, renewal, extension, modification, or accrual of any of the Guaranteed Obligations owed to Lender and, except to the extent set forth in Paragraph 5(d) hereof, enforcement of any particular orderright or remedy with respect thereto, before demanding payment fromand notice of any other matters relating thereto; (ii) diligence and demand of payment, presentment, protest, dishonor and notice of dishonor; (iii) any statute of limitations affecting Guarantor’s liability hereunder or seeking to the enforcement thereof; and (iv) all principles or provisions of law which conflict with the terms of this Guaranty. Guarantor further agrees that Lender may enforce this Agreement againstGuaranty upon the occurrence of an Event of Default under the Note or the Loan Documents (as Event of Default is defined therein), notwithstanding the existence of any dispute between Borrower and Lender with respect to the existence of the Event of Default or performance of the Guaranteed Obligations or any counterclaim, set-off or other claim which Borrower may allege against Lender with respect thereto. Moreover, Guarantor agrees that Guarantor’s obligations shall not be affected by any circumstances which constitute a legal or equitable discharge of a guarantor or surety. Guarantor agrees that Lender may enforce this Guaranty without the necessity of resorting to or exhausting any security or collateral and without the necessity of proceeding against Borrower or any other guarantor. The Guarantor acknowledges that waives the Lenderright to require Lender to proceed against Borrower, in the Lender's sole discretion, may enforce remedies against the Guarantor pursuant to this Agreement and not enforce similar remedies against any other guarantor with respect to the Guaranteed Obligations or vice versa. The Guarantor further acknowledges that the enforcement of remedies against the Guarantor in lieu of enforcing remedies proceed against any other guarantor, to foreclose any lien on any real or vice versapersonal property, to exercise any right or remedy under the Loan Documents, or to pursue any other remedy or to enforce any other right. (b) Nothing contained herein shall prevent Lender from suing on the Note or from exercising any rights available to it thereunder or under any of the Loan Documents and the exercise of any of Lender’s rights shall not constitute a legal or equitable discharge of Guarantor. Guarantor understands that the exercise by Lender of certain rights and remedies contained in the Loan Documents may affect or eliminate Guarantor’s right of subrogation against Borrower and that Guarantor may therefore incur a partially or totally non-reimbursable liability hereunder; nevertheless, Guarantor authorizes and empowers Lender to exercise, in its sole discretion, any rights and remedies, or any combination thereof, which may then be available to Lender, since it is the validity or enforceability intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. Notwithstanding any foreclosure of the Lender's rights and/or remedies lien of any deed of trust or security agreement with respect to any or all of the real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound under this Agreement Guaranty. Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against the principal by operation of California Code of Civil Procedure (“CCP”)ss. 580d or otherwise. Guarantor expressly waives any defense which, if it had not given this waiver, it might otherwise have to a judgment against it following a non-judicial foreclosure sale, for any portion of the indebtedness guaranteed herein. Without limiting the generality of the foregoing, Guarantor expressly waives any and all benefits and defenses under (i) CCPss. 580a, which if it had not given this waiver, would otherwise limit its liability after a non-judicial foreclosure sale to the difference between the obligations guaranteed herein and the fair market value of the property or interest sold at such non-judicial foreclosure sale; (ii) CXXxx.xx. 580b and 580d, which if it had not given this waiver, would otherwise limit Lender’s right to recover a deficiency judgment with respect to purchase money obligations and after a non-judicial foreclosure sale, respectively; and (iii) CCPss. 726 which, if it had not given this waiver, among other things, would otherwise require Lender to exhaust all of its security before personal judgment may be obtained for deficiency. (c) Guarantor agrees that Guarantor shall have no right of subrogation against Borrower, no right of subrogation against any collateral or security provided for in the Loan Documents and no right of contribution against any other guarantor unless and until all Guaranteed Obligations have been satisfied, and Lender has released, transferred or disposed of all of its rights, title and interest in any collateral or security. To the extent the waiver of Guarantor’s rights of subrogation, reimbursement and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, Guarantor further agrees that Guarantor’s rights of subrogation and reimbursement against Borrower and Guarantor’s rights of subrogation against any collateral or security shall be junior and subordinate to any rights Lender may have against Borrower and to all rights, title and interest Lender may have in such collateral or security, and Guarantor’s rights of contribution against any other guarantor shall be junior and subordinate to any rights Lender may have against such other guarantor. Lender may use, sell or dispose of any item of collateral or security as it sees fit without regard to Guarantor’s subrogation and contribution rights, and upon disposition or sale, Guarantor’s rights of subrogation and contribution shall terminate. With respect to the foreclosure of any security interest in any personal property collateral then securing the Guaranteed Obligations, Lender agrees to give Guarantor five (5) days’ prior written notice, in the manner set forth in Paragraph 9 hereof, of any sale or disposition of any such personal property collateral, other than collateral which is perishable, threatens to decline speedily in value, is of a type customarily sold on a recognized market, or is cash, cash equivalents, certificates of deposit or the like. (d) Guarantor’s sole right with respect to any such foreclosure of real or personal property collateral shall be to bid at such sale in accordance with applicable law. Guarantor acknowledges and agrees that Lender may also bid at any such sale and in the event such collateral is sold to Lender in whole or in partial satisfaction of the Guaranteed Obligations (or any portion thereof), Guarantor shall have no further right or interest with respect thereto. Notwithstanding anything to the contrary contained herein, no provision of this Guaranty shall be deemed to limit, decrease, or in any way to diminish any rights of set-off that Lender may have with respect to any cash, cash equivalents, certificates of deposit, letters of credit or the like which may now or hereafter be deposited with Lender by Borrower. (e) To the extent any dispute exists at any time between Guarantor and any other guarantor as to Guarantor’s right to contribution or otherwise, Guarantor agrees to indemnify, defend and hold Lender harmless from and against any loss, damage, claim, demand, cost or any other guaranty agreement guarantying liability (including attorneys’ fees and costs) Lender may suffer as a result of such dispute. (f) So long as any Guaranteed Obligations shall be owing to Lender, Guarantor shall not, without the prior written consent of Lender, commence or join with any other party in commencing any bankruptcy, reorganization or insolvency proceedings of or against Borrower. The obligations of Guarantor under this Guaranty shall not be altered, limited or affected by any case, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation of Borrower or by any defense which Borrower may have by reason of the Guaranteed Obligations. 4.03 Waives any requirement that the Lender first seek to enforce remedies against any property in which the Lender may have any interest securing any (a) indebtedness which either Guarantor has guaranteed under this Agreementorder, decree or (b) guaranty obligations decision of any other guarantor, court or enforcing administrative body resulting from any such rights case. Lender shall have the sole right to accept or reject any plan on behalf of Guarantor proposed in such case and to take any particular order, before demanding payment from, or seeking other action which Guarantor would be entitled to enforce this Agreement against, either Guarantor. 4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all of the Guaranteed Obligationstake, including, without limitation, all obligations the decision to file or not file a claim. Guarantor acknowledges and agrees that any interest on the Guaranteed Obligations which accrues after the commencement of the Borrower under the Revolving Credit Noteany such proceeding (or, and all other obligations of the Borrower under the Loan Agreement and the other Borrower Documents, or by payment in full by the Guarantor if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of any such proceeding, such interest as would have accrued on any such portion of the Guaranteed Obligations if the proceedings had not been commenced) shall be included in accordance the Guaranteed Obligations because it is the intention of the parties that the Guaranteed Obligations should be determined without regard to any rule or law or order which may relieve Borrower of any portion of such Guaranteed Obligations. Guarantor expressly permits any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person with respect to such case to pay Lender, or allow the terms claim of this Agreement. 4.05 Agrees that this Agreement Lender in respect of, any such interest accruing after the date on which such proceeding is commenced. Guarantor assigns to Lender Guarantor’s right to receive any payments from any such trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person by way of dividend, adequate protection payment or otherwise. If all or any portion of the Guaranteed Obligations is paid or performed by Borrower, the obligations of Guarantor hereunder shall continue and remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, the Loan Agreement, any other of the Borrower Documents, or any limitation of the liability of the Borrower thereunder, or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever. 4.06 Waives any obligation event that the Lender might otherwise have to marshal assets or to proceed against any particular persons or assets in any particular order. 4.07 Waives any defenses either Guarantor may have arising out of or in any way related to any or all of the following: (a) Any failure on the part of the Lender to perfect the Lender's security interest in or lien against, or any lack of diligence in connection with or failure to foreclose or realize upon, any property, whether real or personal, tangible or intangible, now or hereafter granted to the Lender as collateral security for any of (1) the Borrower's liabilities or obligations, or (2) either Guarantor's liabilities or obligations hereunder, or (3) any other guarantor's liabilities or obligations under any other guaranty agreement relating to all or any part of such payment(s) or performance(s) is avoided or recovered directly or indirectly from Lender as a preference, fraudulent transfer or otherwise in such case irrespective of payment in full of all obligations under the Guaranteed ObligationsLoan Documents. (b) The voluntary or involuntary discharge or release of any of the Guaranteed Obligations, or of any co-maker, accommodation party, surety or any other person or entity, including but not limited to, any other guarantor, whether voluntarily or by reason of bankruptcy, insolvency, or other laws affecting the rights of creditors generally or otherwise. (c) The receipt by the Lender of any provisional, invalid or refundable payment if such payment is thereafter revoked or if such payment is returned by the Lender to or for the benefit of the Borrower, either Guarantor or any other guarantor or the creditors of either. (d) Any right of set-off or counterclaim against the Lender which would otherwise impair the Lender's rights against either Guarantor or any other guarantor. (e) Any change in the composition, ownership or business of the Borrower, the Guarantor or any other guarantor.

Waivers and Agreements. The (a) Guarantor hereby unconditionally: 4.01 Waives irrevocably waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Lender first seek to enforce remedies Holder protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Borrower Buyer or any other person or entity before seeking to enforce this Agreement against either Guarantorany collateral. 4.02 Waives (b) Guarantor hereby irrevocably agrees that any requirement claim or other rights that it may now or hereafter acquire against the Lender first make demand upon, Buyer or seek to enforce remedies against, to Guarantor, or against any other guarantor of any the Buyer's obligations under the Note that arise from the existence, payment, performance or enforcement of the Guaranteed Obligations in any particular order, before demanding payment from, or seeking to enforce Guarantor's obligations under this Agreement against, the Guarantor Guaranty or any other guarantor. The Guarantor acknowledges that the Lender, in the Lender's sole discretion, may enforce remedies against the Guarantor pursuant to this Agreement and not enforce similar remedies against any other guarantor with respect to the Guaranteed Obligations or vice versa. The Guarantor further acknowledges that the enforcement of remedies against the Guarantor in lieu of enforcing remedies against any other guarantor, or vice versa, shall not affect the validity or enforceability of the Lender's rights and/or remedies under this Agreement or any other guaranty agreement guarantying any of the Guaranteed Obligations. 4.03 Waives any requirement that the Lender first seek to enforce remedies against any property in which the Lender may have any interest securing any (a) indebtedness which either Guarantor has guaranteed under this Agreement, or (b) guaranty obligations of any other guarantor, or enforcing any such rights in any particular order, before demanding payment from, or seeking to enforce this Agreement against, either Guarantor. 4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all of the Guaranteed ObligationsLoan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Holder against the Buyer or any such guarantor or any collateral under the Security Agreement, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Buyer or any such guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, shall be subordinated to the payment in full of all amounts due and owing and the performance of all obligations of the Borrower under the Revolving Credit Note, and all other obligations of the Borrower under the Loan Agreement Note and the other Borrower Loan Documents and shall not be made or exercised until the date the Buyer has indefeasibly paid in full in cash all amounts due and owing under the Note and the other Loan Documents, or by . If any amount shall be paid to Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in full by the Guarantor of the Guaranteed Obligations and all other amounts payable under this Guaranty, such amount shall be held in trust for the benefit of the Holder and shall forthwith be applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement. 4.05 Agrees that this Agreement shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, the Loan Agreement, any other of the Borrower Documents, or any limitation of the liability of the Borrower thereunder, or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever. 4.06 Waives any obligation that the Lender might otherwise have to marshal assets or to proceed against any particular persons or assets in any particular order. 4.07 Waives any defenses either Guarantor may have arising out of or in any way related to any or all of the following: (a) Any failure on the part of the Lender to perfect the Lender's security interest in or lien against, or any lack of diligence in connection with or failure to foreclose or realize upon, any property, whether real or personal, tangible or intangible, now or hereafter granted to the Lender held as collateral security for any of (1) the Borrower's liabilities or obligations, or (2) either Guarantor's liabilities or obligations hereunder, or (3) any other guarantor's liabilities or obligations under any other guaranty agreement relating to all or any part of the Guaranteed Obligations. (b) The voluntary or involuntary discharge or release of any of the Guaranteed Obligations, or of any co-maker, accommodation party, surety or any other person or entity, including but not limited to, any other guarantor, whether voluntarily or by reason of bankruptcy, insolvency, Obligations or other laws affecting the rights of creditors generally or otherwiseamounts payable under this Guaranty thereafter arising. (c) The receipt Guarantor acknowledges that it will receive direct and indirect benefits from the financing accommodations contemplated by the Lender Loan Documents and that the waivers set forth in this Section 3 are knowingly made in contemplation of any provisional, invalid or refundable payment if such payment is thereafter revoked or if such payment is returned by the Lender to or for the benefit of the Borrower, either Guarantor or any other guarantor or the creditors of eitherbenefits. (d) Any right of set-off or counterclaim against the Lender which would otherwise impair the Lender's rights against either Guarantor or any other guarantor. (e) Any change in the composition, ownership or business of the Borrower, the Guarantor or any other guarantor.

Waivers and Agreements. The Guarantor hereby unconditionally:: ---------------------- 4.01 (a) Waives any requirement that the Lender AEI first seek to enforce remedies against the Borrower MTI or any other person or entity Person before seeking to enforce this Agreement Guaranty against either Guarantor.; 4.02 Waives any requirement (b) Agrees that the Lender first make demand upon, or seek to enforce remedies against, to Guarantor, or against any other guarantor of any of the Guaranteed Obligations in any particular order, before demanding payment from, or seeking to enforce this Agreement against, the Guarantor or any other guarantor. The Guarantor acknowledges that the LenderAEI, in the LenderAEI's sole discretion, may enforce remedies against the Guarantor pursuant to this Agreement Guaranty and not enforce similar remedies against any other guarantor with respect to the Guaranteed Obligations or vice versa. The Guarantor further acknowledges that the enforcement of remedies against the Guarantor in lieu of enforcing remedies against any other guarantor, or vice versa, shall not affect the validity or enforceability of the LenderAEI's rights and/or remedies under this Agreement Guaranty or any other guaranty agreement guarantying any of the Guaranteed Obligations.; 4.03 (c) Waives any requirement that the Lender first seek to AEI enforce remedies against any property in which the Lender may have any interest securing any (a) indebtedness which either Guarantor has guaranteed under this Agreement, or (b) guaranty obligations of any other guarantor, or enforcing any such its rights in any particular order, order before demanding payment from, or seeking to enforce this Agreement Guaranty against, either Guarantor.; 4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all of the Guaranteed Obligations, including, without limitation, all obligations of the Borrower under the Revolving Credit Note, and all other obligations of the Borrower under the Loan Agreement and the other Borrower Documents, or by payment in full by the Guarantor of the Guaranteed Obligations in accordance with the terms of this Agreement. 4.05 (d) Agrees that this Agreement Guaranty shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, Agreement or the Loan Agreement, any other of the Borrower DocumentsOther Agreements, or any limitation of the liability of the Borrower MTI thereunder, or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.; 4.06 (e) Waives any obligation that the Lender AEI might otherwise have to marshal assets or to proceed against any particular persons Person or assets in any particular order.; and 4.07 (f) Waives any defenses either Guarantor may have arising out of or in any way related to any or all of the following: (ai) Any failure on the part of the Lender to perfect the Lender's security interest in or lien against, or any lack of diligence in connection with with, or failure to foreclose or realize upon, any property, whether real or personal, tangible or intangible, now or hereafter granted to the Lender AEI as collateral security for any of (1a) the Borrower's liabilities or obligationsobligations of MTI, or (2b) either Guarantor's liabilities or obligations hereunder, or (3c) any other guarantor's liabilities or obligations under any other guaranty agreement relating to all or any part of the Guaranteed Obligations.; (bii) The voluntary or involuntary discharge or release of any of the Guaranteed Obligations, or of any co-maker, accommodation party, surety or any other person or entityPerson, including but not limited to, any other guarantor, whether voluntarily or by reason of bankruptcy, insolvency, or other laws affecting the rights of creditors generally or otherwise.; (ciii) The receipt by the Lender AEI of any provisional, invalid or refundable payment if such payment is thereafter revoked or if such payment is returned by the Lender AEI to or for the benefit of the BorrowerMTI, either Guarantor or any other guarantor or the creditors of either.their respective creditors; (div) Any right of set-off setoff or counterclaim against the Lender AEI which would otherwise impair the LenderAEI's rights against either Guarantor or any other guarantor.; and (ev) Any change in the composition, ownership or business of the BorrowerMTI, the Guarantor or any other guarantor.

Waivers and Agreements. The Each Subsidiary Guarantor hereby unconditionally: 4.01 Waives : (i) waives notice of acceptance hereof, of any requirement action taken or omitted in reliance hereon and of any defaults in respect of the Notes or in the payment of any other Guaranteed Obligations, diligence, protest, presentment, filing of claims with a court in the event of the bankruptcy of the Company, any right to require a proceeding first against the Company, or that the Lender first seek to enforce remedies Company be joined in any proceeding against the Borrower Subsidiary Guarantors, any marshalling of assets of the Subsidiary Guarantors or the Company, any other person or entity before seeking notice of default with respect to enforce this Agreement against either Guarantor. 4.02 Waives any requirement that the Lender first make demand upon, or seek to enforce remedies against, to Guarantor, or against any other guarantor of any of the Guaranteed Obligations in any particular order, before demanding payment from, Notes or seeking to enforce this Agreement against, the Guarantor or any other guarantor. The Guarantor acknowledges that the Lender, in the Lender's sole discretion, may enforce remedies against the Guarantor pursuant to this Agreement and not enforce similar remedies against any other guarantor with respect to the Guaranteed Obligations or vice versa. The Guarantor further acknowledges that the enforcement of remedies against the Guarantor in lieu of enforcing remedies against any other guarantor, or vice versa, shall not affect the validity or enforceability of the Lender's rights and/or remedies under this Agreement or any other guaranty agreement guarantying act or omission or thing or delay to do any other act or thing which might in any manner or to any extent vary the risk of the Guaranteed Obligations. 4.03 Waives any requirement that the Lender first seek to enforce remedies against any property in Subsidiary Guarantors or which the Lender may have any interest securing any (a) indebtedness which either Guarantor has guaranteed under this Agreement, or (b) guaranty obligations of any other guarantor, or enforcing any such rights in any particular order, before demanding payment from, or seeking to enforce this Agreement against, either Guarantor. 4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all might otherwise operate as a discharge of the Guaranteed Obligations, including, without limitation, all obligations of the Borrower under the Revolving Credit Note, and all other obligations of the Borrower under the Loan Agreement and the other Borrower Documents, or by payment in full by the Guarantor of the Guaranteed Obligations in accordance with the terms of this Agreement. 4.05 Agrees Subsidiary Guarantors; (ii) agrees that this Agreement Subsidiary Guarantee shall remain in full force and effect without regard to, and shall not be affected or impaired by by, any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, the Loan Agreement, any other of the Borrower Documents, Notes or the other Guaranteed Obligations or this Agreement or any limitation of the limitations of liability of the Borrower thereunder, or any limitation on the method or terms of payment conditions thereunder which may now or hereafter be caused or imposed in any manner whatsoever. 4.06 Waives ; (iii) agrees that this Subsidiary Guarantee shall not be subject to any obligation counterclaim (other than those which are compulsory in nature), set-off, deduction or defense based upon any claim the Subsidiary Guarantors may have against the Company or the Purchasers or any holder of the Notes hereunder or otherwise; and (iv) agrees that this Subsidiary Guarantee shall be discharged only by complete performance of the Lender might otherwise undertakings in the Notes and in this paragraph 14. Nothing herein is intended to impair any rights of the Subsidiary Guarantors to enforce any rights they may have to marshal assets or to proceed against any particular persons Person by way of a separate proceeding or assets in any particular orderaction. 4.07 Waives any defenses either Guarantor may have arising out of or in any way related to any or all of the following: (a) Any failure on the part of the Lender to perfect the Lender's security interest in or lien against, or any lack of diligence in connection with or failure to foreclose or realize upon, any property, whether real or personal, tangible or intangible, now or hereafter granted to the Lender as collateral security for any of (1) the Borrower's liabilities or obligations, or (2) either Guarantor's liabilities or obligations hereunder, or (3) any other guarantor's liabilities or obligations under any other guaranty agreement relating to all or any part of the Guaranteed Obligations. (b) The voluntary or involuntary discharge or release of any of the Guaranteed Obligations, or of any co-maker, accommodation party, surety or any other person or entity, including but not limited to, any other guarantor, whether voluntarily or by reason of bankruptcy, insolvency, or other laws affecting the rights of creditors generally or otherwise. (c) The receipt by the Lender of any provisional, invalid or refundable payment if such payment is thereafter revoked or if such payment is returned by the Lender to or for the benefit of the Borrower, either Guarantor or any other guarantor or the creditors of either. (d) Any right of set-off or counterclaim against the Lender which would otherwise impair the Lender's rights against either Guarantor or any other guarantor. (e) Any change in the composition, ownership or business of the Borrower, the Guarantor or any other guarantor.