Nautilus 2007 Annual Report Download - page 131

5.11.2 Waivers .
(a) Each Borrower expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or
otherwise, to compel Agent or Lenders to marshal assets or to proceed against any Obligor, other Person or security for the payment or
performance of any Obligations before, or as a condition to, proceeding against such Borrower. Each Borrower waives all defenses
available to a surety, guarantor or accommodation co-obligor other than Full Payment of all Obligations. It is agreed among each
Borrower, Agent and Lenders that the provisions of this Section 5.11 are of the essence of the transaction contemplated by the Loan
Documents and that, but for such provisions, Agent and Lenders would decline to make Loans and issue Letters of Credit. Each Borrower
acknowledges that its guaranty pursuant to this Section is necessary to the conduct and promotion of its business, and can be expected to
benefit such business.
(b) Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon
Collateral or any Real Estate by judicial foreclosure or non-judicial sale or enforcement, without affecting any rights and remedies under
this Section 5.11 . If, in taking any action in connection with the exercise of any rights or remedies, Agent or any Lender shall forfeit any
other rights or remedies, including the right to enter a deficiency judgment against any Borrower or other Person, whether because of any
Applicable Laws pertaining to “election of remedies” or otherwise, each Borrower consents to such action and waives any claim based
upon it, even if the action may result in loss of any rights of subrogation that any Borrower might otherwise have had. Any election of
remedies that results in denial or impairment of the right of Agent or any Lender to seek a deficiency judgment against any Borrower shall
not impair any other Borrower’s obligation to pay the full amount of the Obligations. Each Borrower waives all rights and defenses arising
out of an election of remedies, such as nonjudicial foreclosure with respect to any security for the Obligations, even though that election of
remedies destroys such Borrower’s rights of subrogation against any other Person. Agent may bid all or a portion of the Obligations at any
foreclosure or trustee’s sale or at any private sale, and the amount of such bid need not be paid by Agent but shall be credited against the
Obligations. The amount of the successful bid at any such sale, whether Agent or any other Person is the successful bidder, shall be
conclusively deemed to be the fair market value of the Collateral, and the difference between such bid amount and the remaining balance
of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 5.11 , notwithstanding
that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which Agent or any
Lender might otherwise be entitled but for such bidding at any such sale.
5.11.3 Extent of Liability; Contribution .
(a) Notwithstanding anything herein to the contrary, each Borrower’s liability under this Section 5.11 shall be limited to the greater
of (i) all amounts for which such Borrower is primarily liable, as described below, and (ii) such Borrower’s Allocable Amount.
(b) If any Borrower makes a payment under this Section 5.11 of any Obligations (other than amounts for which such Borrower is
primarily liable) (a “ Guarantor Payment ”) that, taking into account all other Guarantor Payments previously or concurrently made by any
other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations
satisfied by such Guarantor Payments in the same proportion that such Borrower’s Allocable Amount bore to the total Allocable Amounts
of all Borrowers, then such Borrower shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by,
each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment. The “ Allocable Amount ” for any Borrower shall be the maximum amount that could then be recovered from
such Borrower under this Section 5.11 without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any
applicable state fraudulent transfer or conveyance act, or similar statute or common law.
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