Common use of Waivers by Borrower Clause in Contracts

Waivers by Borrower. IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE LOANS, ANY OF THE NOTES, ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE BORROWER AND THE LENDERS OR THE AGENT, THE BORROWER AND EACH LENDER AND THE AGENT HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION. The Borrower, the Agent and the Lenders believe that, inasmuch as this Agreement and the transactions contemplated hereby have been entered into and consummated outside the State of Alabama, such transactions constitute transactions in interstate commerce, so that neither the Agent nor any of the Lenders is required, solely by entering into this Agreement and consummating the transactions contemplated hereby, to qualify to do business as a foreign corporation within the State of Alabama. Notwithstanding the foregoing, however, the Borrower hereby irrevocably waives all rights that it may have to raise, in any action brought by any of the Lenders or the Agent to enforce the rights of the Lenders and the Agent hereunder or under any of the other Loan Documents, or the obligations of the Borrower hereunder or thereunder, any defense which is based upon the failure of any of the Lenders or the Agent to qualify to do business as a foreign corporation in the State of Alabama, including, but not limited to, any defenses based upon ss. 232 of the Alabama Constitution of 1901, ss. 10-2B-15.01 of the Code of Alabama (1975) or ss. 40-14-4 of the Code of Alabama (1975), or any successor provision to any thereof. The foregoing waiver is made knowingly and voluntarily and is a material inducement for the Agent and the Lenders to enter into the transactions contemplated by this Agreement or any of the other Loan Documents.

Waivers by Borrower. IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE LOANS, ANY OF THE NOTES, ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE BORROWER AND THE LENDERS OR THE AGENT, THE BORROWER AND EACH LENDER AND THE AGENT HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION. The Borrower, the Agent and the Lenders believe that, inasmuch as this Agreement and the transactions contemplated hereby have been entered into and consummated outside the State of Alabama, such transactions constitute transactions in interstate commerce, so that neither the Agent nor any of the Lenders is required, solely by entering into this Agreement and consummating the transactions contemplated hereby, to qualify to do business as a foreign corporation within the State of Alabama. Notwithstanding the foregoing, however, the (a) Each Borrower hereby irrevocably expressly waives all rights that it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to raisecompel Agent or any Lender to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Borrower, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. (b) To the maximum extent permitted by law, the Borrower, in its capacity as a surety as a result of joint and several obligations hereunder, hereby waives and agrees not to assert or take advantage of: (i) the unenforceability or invalidity of any action brought by any of the Lenders security or guaranty or the Agent to enforce the rights lack of the Lenders and the Agent hereunder perfection or under any of the other Loan Documentscontinuing perfection, or failure of priority of any security for the obligations Obligations; (ii) any and all rights and defenses arising out of the Borrower hereunder an election of remedies by Agent or thereunder, any Lender; (iii) any defense which is based upon any failure to disclose to such Borrower any information concerning the failure financial condition of any of the Lenders or the Agent to qualify to do business as a foreign corporation in the State of Alabama, including, but not limited to, any defenses based upon ss. 232 of the Alabama Constitution of 1901, ss. 10-2B-15.01 of the Code of Alabama (1975) or ss. 40-14-4 of the Code of Alabama (1975), other Borrower or any successor provision other Person or any other circumstances bearing on the ability of any other Borrower or any other Person to any thereof. The foregoing waiver is made knowingly pay and voluntarily and is a material inducement for the Agent and the Lenders to enter into the transactions contemplated by perform all obligations due under this Agreement or any of the other Loan Documents.; (iv) any failure of Agent or any Lender to comply with applicable laws in connection with the sale or disposition of security, including, without limitation, any failure by the Agent or any Lender to conduct a commercially reasonable sale or other disposition of such security; (v) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal, or that reduces a surety’s or guarantor’s obligations in proportion to the principal’s obligation; (vi) any use of cash collateral under Section 363 of the Bankruptcy Code; (vii) any defense based upon an election by Agent or any Lender, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)

Waivers by Borrower. IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE LOANS, ANY OF THE NOTES, ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT, OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE BORROWER AND THE LENDERS OR THE AGENT, THE BORROWER AND EACH LENDER AND THE AGENT HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION. The Borrower, the Agent and the Lenders believe that, inasmuch as this Agreement and the transactions contemplated hereby have been entered into and consummated outside the State of Alabama, such transactions constitute transactions in interstate commerce, so that neither the Agent nor any of the Lenders is required, solely by entering into this Agreement and consummating the transactions contemplated hereby, to qualify to do business as a foreign corporation within the State of Alabama. Notwithstanding the foregoing, however, the (a) Each Borrower hereby irrevocably expressly waives all rights that it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to raisecompel Agent or any Lender to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Borrower, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. (b) To the maximum extent permitted by law, the Borrower, in its capacity as a surety as a result of joint and several obligations hereunder, hereby waives and agrees not to assert or take advantage of: (i) the unenforceability or invalidity of any action brought by any of the Lenders security or guaranty or the Agent to enforce the rights lack of the Lenders and the Agent hereunder perfection or under any of the other Loan Documentscontinuing perfection, or failure of priority of any security for the obligations Obligations; (ii) any and all rights and defenses arising out of the Borrower hereunder an election of remedies by Agent or thereunder, any Lender; (iii) any defense which is based upon any failure to disclose to such Borrower any information concerning the failure financial condition of any of the Lenders or the Agent to qualify to do business as a foreign corporation in the State of Alabama, including, but not limited to, any defenses based upon ss. 232 of the Alabama Constitution of 1901, ss. 10-2B-15.01 of the Code of Alabama (1975) or ss. 40-14-4 of the Code of Alabama (1975), other Borrower or any successor provision other Person or any other circumstances bearing on the ability of any other Borrower or any other Person to any thereof. The foregoing waiver is made knowingly pay and voluntarily and is a material inducement for the Agent and the Lenders to enter into the transactions contemplated by perform all obligations due under this Agreement or any of the other Loan Documents; (iv) any failure of Agent or any Lender to comply with applicable laws in connection with the sale or disposition of security, including, without limitation, any failure by the Agent or any Lender to conduct a commercially reasonable sale or other disposition of such security; (v) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal, or that reduces a surety’s or guarantor’s obligations in proportion to the principal’s obligation; (vi) any use of cash collateral under Section 363 of the Bankruptcy Code; (vii) any defense based upon an election by Agent or any Lender, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute; (viii) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (ix) any right of subrogation, any right to enforce any remedy which Agent or any Lender may have against any other Borrower or any other Person and any right to participate in, or benefit from, any security now or hereafter held by Agent or any Lender for the Obligations, until the full and indefeasible payment of the Obligations in cash and the termination of the Commitments; (x) presentment, demand, protest and notice of any kind, including notice of acceptance of this Agreement and of the existence, creation or incurring of new or additional Obligations; (xi) the benefit of any statute of limitations affecting the liability of any other Borrower or other Person, enforcement of this Agreement or any other Loan Documents, the liability of the Borrower hereunder or the enforcement hereof; (xii) relief from any applicable valuation or appraisement laws; (xiii) any other action by Agent or any Lender, whether authorized by this Agreement or otherwise, or any omission by Agent or any Lender or other failure of Agent or any Lender to pursue, or delay in pursuing, any other remedy in its power; and (xiv) any and all claims and/or rights of counterclaim, recoupment, setoff or offset. Each Borrower agrees that the payment and performance of all Obligations or any part thereof or other act which tolls any statute of limitations applicable to this Agreement or the other Loan Documents shall similarly operate to toll the statute of limitations applicable to such Borrower’s liability hereunder. (c) It is agreed among the Borrower, Agent, and each Lender that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Article 18 and such waivers, Agent and Lenders would decline to enter into this Agreement.

Waivers by Borrower. IN ANY LITIGATION IN ANY COURT WITH RESPECT TOIn any litigation in any court with respect to, IN CONNECTION WITHin connection with, OR ARISING OUT OF THIS AGREEMENTor arising out of this Agreement, THE LOANSthe Loans, ANY OF THE NOTESany of the Notes, ANY OF THE OTHER LOAN DOCUMENTSany of the other Loan Documents, THE OBLIGATIONSthe Obligations, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENTor any instrument or document delivered pursuant to this Agreement, OR THE VALIDITYor the validity, PROTECTIONprotection, INTERPRETATIONinterpretation, COLLECTION OR ENFORCEMENT THEREOFcollection or enforcement thereof, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE BORROWER AND THE LENDERS OR THE AGENTor any other claim or dispute howsoever arising between the Borrower and the Lenders or the Agent, THE BORROWER AND EACH LENDER AND THE AGENT HEREBY WAIVEthe Borrower and each Lender and the Agent hereby waive, TO THE EXTENT PERMITTED BY LAWto the extent permitted by law, TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATIONtrial by jury in connection with any such litigation. The Borrower, the Agent and the Lenders believe that, inasmuch as this Agreement and the transactions contemplated hereby have been entered into and consummated outside the State of Alabama, such transactions constitute transactions in interstate commerce, so that neither the Agent nor any of the Lenders is required, solely by entering into this Agreement and consummating the transactions contemplated hereby, to qualify to do business as a foreign corporation within the State of Alabama. Notwithstanding the foregoing, however, the Borrower hereby irrevocably waives all rights that it may have to raise, in any action brought by any of the Lenders or the Agent to enforce the rights of the Lenders and the Agent hereunder or under any of the other Loan Documents, or the obligations of the Borrower hereunder or thereunder, any defense which is based upon the failure of any of the Lenders or the Agent to qualify to do business as a foreign corporation in the State of Alabama, including, but not limited to, any defenses based upon ss. 232 of the Alabama Constitution of 1901, ss. 10-2B-15.01 of the Code of Alabama (1975) or ss. 40-14-4 of the Code of Alabama (1975), or any successor provision to any thereof. The foregoing waiver is made knowingly and voluntarily and is a material inducement for the Agent and the Lenders to enter into the transactions contemplated by this Agreement or any of the other Loan Documents.

Waivers by Borrower. IN ANY LITIGATION IN ANY COURT WITH RESPECT TOIn any litigation in any court with respect to, IN CONNECTION WITHin connection with, OR ARISING OUT OF THIS AGREEMENTor arising out of this Agreement, THE LOANSthe Loans, ANY OF THE NOTESany of the Notes, ANY OF THE OTHER LOAN DOCUMENTSany of the other Loan Documents, THE OBLIGATIONSthe Collateral, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENTthe Credit Obligations, OR THE VALIDITYor any instrument or document delivered pursuant to this Agreement, PROTECTIONor the validity, INTERPRETATIONprotection, COLLECTION OR ENFORCEMENT THEREOFinterpretation, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE BORROWER AND THE LENDERS OR THE AGENTcollection or enforcement thereof, THE BORROWER AND EACH LENDER AND THE AGENT HEREBY WAIVEor any other claim or dispute howsoever arising between the Borrower and the Lenders or the Agent, TO THE EXTENT PERMITTED BY LAWthe Borrower and each Lender and the Agent hereby waive, TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATIONto the extent permitted by law, trial by jury in connection with any such litigation. The Borrower, the Agent and the Lenders believe that, inasmuch as this Agreement and the transactions contemplated hereby have been entered into and consummated outside the State of Alabama, such transactions constitute transactions in interstate commerce, so that neither the Agent nor any of the Lenders is required, solely by entering into this Agreement and consummating the transactions contemplated hereby, to qualify to do business as a foreign corporation within the State of Alabama. Notwithstanding the foregoing, however, the Borrower hereby irrevocably waives all rights that it may have to raise, in any action brought by any of the Lenders or the Agent to enforce the rights of the Lenders and the Agent hereunder or under any of the other Loan Documents, or the obligations of the Borrower hereunder or thereunder, any defense which is based upon the failure of any of the Lenders or the Agent to qualify to do business as a foreign corporation in the State of Alabama, including, but not limited to, any defenses based upon ss. 232 of the Alabama Constitution of 1901, ss. 10-2B-15.01 2A-247 of the Code of Alabama (1975) or ss. 40-14-4 of the Code of Alabama (1975), or any successor provision to any thereof. The foregoing waiver is made knowingly and voluntarily and is a material inducement for the Agent and the Lenders to enter into the transactions contemplated by this Agreement or any of the other Loan Documents.

Waivers by Borrower. IN ANY LITIGATION IN ANY COURT WITH RESPECT TO(a) Each Borrower expressly waives all rights it may have now or in the future under any statute, IN CONNECTION WITHor at common law, OR ARISING OUT OF THIS AGREEMENTor at law or in equity, THE LOANSor otherwise, ANY OF THE NOTESto compel Agent or Lenders to marshall assets or to proceed in respect of the Obligations guaranteed xxxxxxxer against any other Credit Party, ANY OF THE OTHER LOAN DOCUMENTSany other party or against any security for the payment and performance of the Obligations before proceeding against, THE OBLIGATIONSor as a condition to proceeding against, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENTBorrower. It is agreed among Borrowers, OR THE VALIDITYAgent, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING BETWEEN THE BORROWER AND THE LENDERS OR THE AGENT, THE BORROWER AND EACH LENDER AND THE AGENT HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION. The Borrower, the Revolving Credit Agent and Lenders that the Lenders believe that, inasmuch as foregoing waivers are of the essence of the transaction contemplated by this Agreement and the transactions contemplated hereby other Loan Documents and that, but for the provisions of this SECTION 12 and such waivers, Agent, Revolving Credit Agent and Lenders would decline to enter into this Agreement. (b) Each Borrower acknowledges and agrees that they are providing a cross-guaranty of the obligations of each other Borrower under this SECTION 12 and as such, each Borrower will be sometimes referred to in this SECTION 12.2 as a "CROSS-GUARANTOR" and collectively, as the "CROSS-GUARANTORS." Without limiting the generality of the foregoing, each Cross-Guarantor waives any and all benefits and defenses under California Civil Code ("CC") Sections 2847, 2848 and 2849 and agrees that such Cross-Guarantor shall have (i) no right of subrogation against any other Borrower, any other Cross-Guarantor or any other Guarantor, (ii) no right of subrogation against any Collateral or security provided for in the Loan Documents and (iii) no right of contribution against any other Borrower, Cross-Guarantor or other Guarantor unless and until all Obligations have been entered into paid and consummated outside satisfied in full, and Lender has released, transferred or disposed of all of its rights, title and interest in any collateral or security. To the State extent the waiver of Alabamasuch Cross-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, such transactions constitute transactions Cross-Guarantor's rights of subrogation and reimbursement against any other Borrower and such Cross-Guarantor's rights of subrogation against any Collateral or security, shall be junior and subordinate to any rights Lender may have against any other Borrower, other Cross-Guarantor or any other Guarantor and to all rights, title and interest Lender may have in interstate commercesuch Collateral or security, so and such Cross-Guarantor's rights of contribution against the other Borrowers, Cross-Guarantors and any other Guarantors shall be junior and subordinate to any rights Lender may have against the other Borrowers, Cross-Guarantors or other Guarantors. (c) Agent may use, sell or dispose of any item of Collateral or security as it sees fit without regard to such Cross-Guarantor's subrogation and contribution rights, and upon disposition or sale, of any item, any and all rights of such Cross-Guarantors relating to such item shall terminate. Each Cross-Guarantor understands that neither they may record a Request for Notice of Default pursuant to CC Section 2924(b) and thereby receive notice of any proposed foreclosure of any Mortgaged Property then securing the Obligations. With respect to the foreclosure of any security interest in any personal property Collateral then securing the Obligations, Agent nor agrees to give Cross-Guarantors five days' prior written notice, in the manner set forth in SECTION 11.10 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) Further, in accordance with CC Section 2856, (i) Each Cross-Guarantor waives all rights and defenses available to such Cross-Guarantor by reason of CC Sections 2787 to 2855, inclusive, 2899 and 3433 including, without limitation, any and all rights or defenses such Cross-Guarantor may have by reason of protection afforded to the principal with respect to any of the Lenders is requiredObligations or to any other Borrower, solely by entering into any other Cross-Guarantor or any other Guarantor of any of the Obligations with respect to such Cross-Guarantor's obligations under the cross-guaranty contained in this Agreement and consummating SECTION 12, in either case, pursuant to the transactions contemplated herebyanti-deficiency or other laws of California limiting or discharging the principal's indebtedness or any other Borrower's, to qualify to do business as a foreign corporation within the State any other Cross-Guarantor's or other Guarantor's obligations, including, without limitation, California Code of Alabama. Notwithstanding the foregoingCivil Procedure ("CCP") Section 580a, however580b, the Borrower hereby irrevocably 580d or 726; and (ii) Each Cross-Guarantor waives all rights and defenses that it such Cross-Guarantor may have because another Borrower's, another Cross-Guarantor's or another Guarantor's debt is secured by Real Estate. This means, among other things: (1) Agent may collect from each Cross-Guarantor without first foreclosing on any real or personal property collateral pledged by any other Borrower, Cross-Guarantor or other Guarantor. (2) If Agent forecloses on any Mortgaged Property pledged by any Borrower, any Cross-Guarantor or any other Guarantor: (1) the amount of the debt may be reduced only by the price for which that Collateral is sold at the foreclosure sale, even if the Collateral is worth m ore than the sale price, and (2) Agent may collect from each Cross-Guarantor even if Agent, by foreclosing on the Mortgaged Property, has destroyed any right such Cross-Guarantor may have to raisecollect from the other Borrower. This is an unconditional and irrevocable waiver of any rights and defenses Cross-Guarantors may have because another Borrower's, another Cross-Guarantor's or another Guarantor's debt is secured by Real Estate. These rights and defenses include, but are not limited to, any rights or defenses based upon CCP Section 580a, 580b, 580d or 726; and (iii) Each Cross-Guarantor waives all rights and defenses arising out of an election of remedies by Agent or Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Obligations, has destroyed such Cross-Guarantor's rights of subrogation and reimbursement against another Borrower, another Cross-Guarantor or another Guarantor by the operation of CCP Section 580d or otherwise. (e) Each Cross-Guarantor waives any and all benefits and defenses under CC Section 2819, and agrees that by doing so such Cross-Guarantor's liability shall continue even if Agent alters any obligations under the Loan Documents in any action brought respect or Agent's remedies or rights against another Borrower are in any way impaired or suspended without such Cross-Guarantor's consent. (f) Each Cross-Guarantor waives any and all benefits and defenses under CC Section 2809, 2810, 2815 and 2839 and agrees that by doing so such Cross-Guarantor's liability may be larger in amount and more burdensome than that of any other Borrower, any other Cross-Guarantor or any other Guarantor. No Cross-Guarantor's liability hereunder shall be limited or affected in any way by any impairment or any diminution or loss of value of any security or collateral for the Lenders Loan (whether caused by Hazardous Substances or otherwise), Agent's failure to perfect a security interest in such security or collateral or any disability or other defense of any other Borrower, any other Cross-Guarantor or any other Guarantor. (g) Each Cross-Guarantor agrees that Agent may enforce this Guaranty without the necessity of resorting to or exhausting any security or Collateral (including, without limitation, pursuant to a judicial or nonjudicial foreclosure) and without the necessity of proceeding against any other Borrower, any other Cross-Guarantor or any other Guarantor. Each Cross-Guarantor hereby waives any and all benefits and defenses under CC Sections 2845 through 2847, 2849 and 2850, including, without limitation, the right to require Agent (i) to proceed against any other Borrower, any other Cross-Guarantor, any other Guarantor, (ii) to foreclose any lien on any real or personal property,(iii) to exercise any right or remedy under the Loan Documents, (iv) to draw upon any letter of credit issued in connection herewith, or (v) to pursue any other remedy or to enforce the any other right. (h) Each Cross-Guarantor agrees that nothing contained herein shall prevent Agent or any Lender from suing on any Note or from exercising any rights of the Lenders and the Agent hereunder available to them thereunder or under any of the other Loan Documents, or Documents and that the obligations of the Borrower hereunder or thereunder, any defense which is based upon the failure exercise of any of the Lenders aforesaid rights shall not constitute a legal or equitable discharge of such Cross-Guarantor. Each Cross-Guarantor understands that the exercise by Agent of certain rights and remedies contained in the Loan Documents (such as a nonjudicial foreclosure) may affect or eliminate such Cross-Guarantor's right of subrogation against another Borrower, another Cross-Guarantor or another Guarantor and that such Cross-Guarantor may therefore incur a partially or totally nonreimbursable liability hereunder. Nevertheless, each Cross-Guarantor authorizes and empowers Agent to qualify to do business as a foreign corporation exercise, in the State of Alabama, including, but not limited toits sole discretion, any defenses based upon ss. 232 of the Alabama Constitution of 1901, ss. 10-2B-15.01 of the Code of Alabama (1975) or ss. 40-14-4 of the Code of Alabama (1975)rights and remedies, or any successor provision combination thereof, which may then be available to Agent, since it is the intent and purpose of each Cross-Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. Each Cross-Guarantor expressly waives any defense (which defense, if such Cross-Guarantor had not given this waiver, it might otherwise have) to a judgment against such Cross-Guarantor by reason of a nonjudicial foreclosure sale. Without limiting the generality of the foregoing, such Cross-Guarantor waives any and all benefits and defenses under (i) CCP Section 580a (which section, if such Cross-Guarantor had not given this waiver, would otherwise limit such Cross-Guarantor's liability after a nonjudicial foreclosure sale to the difference between the obligations guaranteed herein and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) CCP Sections 580b and 580d (which sections, if such Cross-Guarantor had not given this waiver, would otherwise limit Agent's rights to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) CCP Section 726 (which section, if such Cross-Guarantor had not given this waiver, among other things, would otherwise require Agent to exhaust all of its security before a personal judgment may be obtained for a deficiency). Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any thereof. The foregoing waiver is made knowingly and voluntarily and is 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 material inducement for deed in lieu of foreclosure, each Cross-Guarantor shall remain bound under the Agent and the Lenders to enter into the transactions contemplated by cross-guaranty contained in this SECTION 12. (i) No provision of this Agreement or shall be construed as limiting the generality for any of the other Loan Documentscovenants and waivers set forth in this SECTION 12.