Cross-Guaranty. (a) Notwithstanding that the Loan Parties are jointly and severally liable for all Obligations, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party absolutely and unconditionally guarantees to the Administrative Agent and each Lender, and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, or otherwise) and performance of all Obligations (excluding Excluded Hedging Obligations). Each Loan Party’s Guaranty obligation is in addition to all other Guaranty obligations and is a payment and performance Guaranty (and not a collection Guaranty), and its obligations under this Section are absolute and unconditional, irrespective of, and not affected by: (i) The genuineness, validity, regularity, enforceability or any future amendment of, or change in, any other Loan Document or any other agreement, document, or instrument to which the other Loan Parties are or may become a party. (ii) The Administrative Agent or the Lenders, as applicable, not enforcing the Loan Documents (including this Section). (iii) The existence, value, or condition of any Collateral, the Administrative Agent not perfecting its Lien on any Collateral, the Administrative Agent releasing any Collateral, or any Person liable for the Obligations. (iv) Any other action or circumstances that could be a legal or equitable defense of a surety or guarantor. (b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral. (c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might be in conflict with the terms of this Section. Each Loan Party represents, warrants, and agrees that its obligations under this Section are not and will not be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan Documents. (d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party: (i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements. (ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties). (iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section. (e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale). (f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminated. (g) Each Loan Party’s liability under this Section is limited to an amount not to exceed on any determination date the greater of (i) or (ii): (i) The net amount of all Loans to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party. (ii) The Loan Party’s Allocable Amount, after taking into account, among other things, that Loan Party’s right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Cross-Guaranty. (ai) Notwithstanding Each Borrower (each to be referred to in this Section 2.14 as a “Cross-Guarantor” and collectively as the “Cross-Guarantors”) hereby agrees that the Loan Parties are it is jointly and severally liable for all Obligationsfor, if for any reason the Loan Parties are found in a finaland, non-appealable order as primary obligor and not to be jointly merely as surety, and severally liable for all Obligationstherefore does absolutely, then provisions of this Section apply and each Loan Party absolutely irrevocably and unconditionally guarantees guarantee to the Administrative Agent and each Lender, and their respective successors and assignsBank, the full and prompt payment (when due, whether at stated maturity, by acceleration, upon acceleration or otherwise) , and performance at all times thereafter, of all the Obligations of each other Borrower (excluding Excluded Hedging such Obligations, collectively the “Cross-Guaranteed Obligations”). Each Loan Party’s Guaranty obligation is Cross-Guarantor further agrees that the Cross-Guaranteed Obligations may be extended or renewed in addition whole or in part without notice to all other Guaranty obligations and is a payment and performance Guaranty (and not a collection Guaranty)or further assent from it, and that it remains bound upon its obligations under this Section are absolute and unconditional, irrespective of, and not affected by:
(i) The genuineness, validity, regularity, enforceability guarantee notwithstanding any such extension or any future amendment of, or change in, any other Loan Document or any other agreement, document, or instrument to which the other Loan Parties are or may become a partyrenewal.
(ii) The Administrative Agent provisions of this Section 2.14 (this “Cross-Guaranty”) are a guaranty of payment and not of collection. Each Cross-Guarantor waives any right to require Bank to s▇▇ any other Loan Party, any other guarantor, or any other Person obligated for all or any part of the LendersCross-Guaranteed Obligations, as applicable, not enforcing or otherwise to enforce its payment against any collateral securing all or any part of the Loan Documents (including this Section)Cross-Guaranteed Obligations.
(iii) The Except as otherwise provided for herein and to the extent provided for herein, the obligations of each Cross-Guarantor hereunder are unconditional and absolute and not subject to any reduction, limitation, impairment or termination for any reason (other than the Payment in Full of the Obligations), including:
(a) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the Cross-Guaranteed Obligations, by operation of law or otherwise;
(b) any change in the corporate or, as applicable, limited liability company existence, valuestructure or ownership of any Loan Party or any other Person liable for any of the Cross-Guaranteed Obligations; First Financial Bank, National Association Borrowers: Environmental Quality Management, Inc. and EQ Engineers, LLC Loan Number: 820106477
(c) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Loan Party or any other Person liable for any of the Cross-Guaranteed Obligations, or condition their assets or any resulting release or discharge of any Collateralobligation of any Loan Party or any other Person liable for any of the Cross-Guaranteed Obligations; or
(d) the existence of any claim, the Administrative Agent not perfecting its Lien on setoff or other rights which any CollateralCross-Guarantor may have at any time against any other Loan Party, the Administrative Agent releasing any CollateralBank, or any Person liable for the Obligationsother Person, whether in connection herewith or in any unrelated transactions.
(iv) Any The obligations of each Cross-Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity, illegality, or unenforceability of any of the Cross-Guaranteed Obligations or otherwise, or any provision of applicable law or regulation purporting to prohibit payment by any Loan Party or any other action Person liable for any of the Cross-Guaranteed Obligations, of the Cross-Guaranteed Obligations or circumstances that could be a legal any part thereof.
(v) Further, the obligations of any Cross-Guarantor hereunder are not discharged or equitable defense impaired or otherwise affected by:
(a) the failure of a surety Bank to assert any claim or guarantor.demand or to enforce any remedy with respect to all or any part of the Cross-Guaranteed Obligations;
(b) The Administrative Agent does not have any waiver or modification of or supplement to proceed against any other Person provision of any agreement relating to the Cross-Guaranteed Obligations;
(including c) any other release, non-perfection, or invalidity of any indirect or direct security for the obligations of Loan Party) Parties (or any Collateral before requiring payment by any one or more of them) for all or any part of the Loan Parties. The Administrative Agent may proceed, before, after, Cross-Guaranteed Obligations or at any obligations of any other Person liable for any of the same time to enforce its rights under this Section and against any Collateral.Cross-Guaranteed Obligations;
(cd) Each Loan Party waives and agrees that it may not at any time insist on, plead, action or claim, or take the benefit or advantage of any laws, claims, or doctrines related failure to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and act by Bank with respect to any collateral securing any part of the Cross-Guaranteed Obligations; or
(e) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Cross-Guaranteed Obligations, or any other circumstance, act, omission or delay that might in any manner or to any extent vary the risk of such Cross-Guarantor or that would otherwise operate as a discharge of any Cross-Guarantor as a matter of law or equity (other than the Payment in Full of the Obligations: ).
(ivi) To the fullest extent permitted by applicable law, each Cross-Guarantor hereby waives any defense based on or arising out of any defense of any Loan Party or the unenforceability of all defenses with respect to diligenceor any part of the Cross-Guaranteed Obligations from any cause, or the cessation from any cause of the liability of any Loan Party, other than the Payment in Full of the Obligations. Without limiting the generality of the foregoing, each Cross-Guarantor irrevocably waives acceptance hereof, presentment, demand, maturityprotest and, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount offullest extent permitted by law, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) any notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might be in conflict with the terms of this Section. Each Loan Party represents, warrants, and agrees that its obligations under this Section are not and will not be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lendersprovided for herein, as applicable, proceed against well as any other Loan Party or requirement that at any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or time any Lender would enter into the Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party:
(i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against action be taken by any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person. Bank may, whether because at its election, foreclose on any Loan Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of any applicable laws relating such Loan Collateral in lieu of foreclosure or otherwise act or fail to “election act with respect to any collateral securing all or a part of remedies” the Cross-Guaranteed Obligations, compromise or similar lawsadjust any part of the Cross-Guaranteed Obligations, the Loan Parties consent to that action by the Administrative Agent and waive make any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of other accommodation with any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment any other Person liable on any part of the Administrative Agent’s Cross-Guaranteed Obligations or exercise any other right or remedy available to seek a deficiency judgment it against a any Loan Party does not impair or any other Person liable on any of the other Loan Parties’ obligation to pay Cross-Guaranteed Obligations, without affecting or impairing in any way the full amount liability of such Cross-Guarantor under this Cross-Guaranty except upon the Payment in Full of the Obligations. If To the Administrative Agent bids at fullest extent permitted by applicable law, each Cross-Guarantor waives any foreclosure saledefense arising out of any such election even though that election may operate, trustee salepursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Cross-Guarantor against any other Loan Party or any other Person liable on any of the Cross-Guaranteed Obligations, as the case may be, or at any private salesecurity.
(vii) No Cross-Guarantor will assert any right, claim or cause of action, including a claim of subrogation, contribution or indemnification that it has against any other Loan Party, any other Person liable on the Administrative Agent may bid all Cross-Guaranteed Obligations, or less than any collateral, until the amount Payment in Full of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount First Financial Bank, National Association Borrowers: Environmental Quality Management, Inc. and EQ Engineers, LLC Loan Number: 820106477
(viii) If at any time any payment of any portion of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Cross-Guaranteed Obligations is conclusively treated as rescinded or must otherwise be restored or returned upon the amount insolvency, bankruptcy, or reorganization of the Obligations guaranteed any Loan Party or otherwise, each Cross-Guarantor’s obligations under this SectionCross-Guaranty with respect to that payment shall be reinstated at such time as though the payment had not been made and whether or not Bank is in possession of this Cross-Guaranty. Except as provided in the preceding sentence, notwithstanding that any law, court decision, or ruling may have each Cross-Guarantor’s obligations under this Cross-Guaranty will terminate when the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Cross-Guaranteed Obligations have been irrevocably paid fully paid, performed and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) satisfied and the Loan Documents have been are terminated. If acceleration of the time for payment of any of the Cross-Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Loan Party, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Cross-Guaranteed Obligations shall nonetheless be payable by the Cross-Guarantors forthwith on demand by Bank.
(gix) Each Cross-Guarantor assumes all responsibility for being and keeping itself informed of each other Loan Party’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Cross-Guaranteed Obligations and the nature, scope and extent of the risks that each Cross-Guarantor assumes and incurs under this Cross-Guaranty, and agrees that Bank shall not have any duty to advise any Cross-Guarantor of information known to it regarding those circumstances or risks.
(x) The provisions of this Cross-Guaranty and the joint and several liability provisions applicable to Cross-Guarantors under this Agreement or the other Loan Documents (collectively, the “Joint and Several Provisions”) are severable, and in any action or proceeding involving any state corporate or limited liability company law, or any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally (each an “Insolvency or Avoidance Action”), if the obligations of any Cross-Guarantor under this Cross-Guaranty or the Joint and Several Provisions would otherwise be held or determined in any Insolvency or Avoidance Action to be avoidable, invalid or unenforceable on account of the amount of such Cross-Guarantor’s liability under this Cross-Guaranty or the Joint and Several Provisions, then, notwithstanding any other provision of this Cross-Guaranty or the Joint and Several Provisions to the contrary, the amount of such liability under this Cross-Guaranty and the Joint and Several Provisions shall, without any further action by any Loan Party or Bank, be automatically limited and reduced to the Maximum Liability (as defined below) with respect to each such Cross-Guarantor. The provisions of this Cross-Guaranty and the Joint and Several Provisions, in each case with respect to the Maximum Liability of each Cross-Guarantor, are intended solely to preserve the rights of Bank to the maximum extent not subject to avoidance under applicable law, and no Cross-Guarantor nor any other Person shall have any right or claim under this Section is limited with respect to an such Maximum Liability except to the extent necessary in any Insolvency or Avoidance Action so that the obligations of any Cross-Guarantor under this Cross-Guaranty or the Joint and Several Provisions shall not be rendered voidable under applicable law. Each Cross-Guarantor agrees that the Cross-Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of each Cross-Guarantor without impairing this Cross-Guaranty or the Joint and Several Provisions or otherwise affecting the rights and remedies of Bank hereunder or with respect thereto, provided that, nothing in this sentence shall be construed to increase any Cross-Guarantor’s obligations under this Cross-Guaranty or the Joint and Several Provisions beyond its Maximum Liability. As used herein, “Maximum Liability” shall mean, with respect to any Cross-Guarantor, the highest amount not which could be claimed by Bank from such Cross-Guarantor solely in its capacity as a Cross-Guarantor or under the Joint and Several Provisions, with respect to exceed on any determination date such Cross-Guarantor’s obligations under this Cross-Guaranty and/or the greater Joint and Several Provisions, without rendering such obligations unenforceable, voidable or avoidable under applicable law. For purposes of this Section 2.14(x), Maximum Liability shall be calculated after giving effect to (i) any right to receive, or (ii):
(i) The net amount of all Loans obligations to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii) The Loan Party’s Allocable Amountmake, after taking into account, among other things, that Loan Party’s right of contribution and indemnification contributions from the other Loan Parties under Section 14.4.2.14(xi) or the other Loan Documents, as applicable, and (ii) the operation of any statute of limitation or other applicable law (collectively, the “Applicable Statute of Limitations”) which has the effect of extinguishing (by reason of the passage of time) a cause of action or proceeding or claim for relief that could otherwise (if not for the Applicable Statute of Limitations) render a Cross-Guarantor’s obligations under this Cross-Guaranty and/or the Joint and Several Provisions unenforceable, voidable or avoidable. For purposes of Section 2.14(xi), Maximum Liability shall be calculated without giving effect to (A) any right to receive, or obligations to make, contributions under Section 2.14(xi) or any other Loan Document, as applicable, and (B) the Applicable Statute of Limitations. First Financial Bank, National Association Borrowers: Environmental Quality Management, Inc. and EQ Engineers, LLC Loan Number: 820106477
Appears in 1 contract
Cross-Guaranty. (a) Notwithstanding that the Loan Parties are jointly and severally liable for all Obligations, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party absolutely and unconditionally guarantees to the Administrative Agent and each Lender, and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, or otherwise) and performance of all Obligations (excluding Excluded Hedging Obligations). Each Loan Party’s 's Guaranty obligation is in addition to all other Guaranty obligations and is a payment and performance Guaranty (and not a collection Guaranty), and its obligations under this Section are absolute and unconditional, irrespective of, and not affected by:
(i1) The genuineness, validity, regularity, enforceability or any future amendment of, or change in, any other Loan Document or any other agreement, document, or instrument to which the other Loan Parties are or may become a party.
(ii2) The Administrative Agent or the Lenders, as applicable, not enforcing the Loan Documents (including this Section).
(iii3) The existence, value, or condition of any Collateral, the Administrative Agent not perfecting its Lien on any Collateral, the Administrative Agent releasing any Collateral, or any Person liable for the Obligations.
(iv4) Any other action or circumstances that could be a legal or equitable defense of a surety or guarantor.
(b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i1) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii2) notice of adverse change in the other Loan Parties’ ' financial condition; and (iii3) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might be in conflict with the terms of this Section. Each Loan Party represents, warrants, and agrees that its obligations under this Section are not and will not be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s 's obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated), each Loan Party:
(i1) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii2) Irrevocably subordinates and defers any “"claim” " (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii3) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s 's liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “"election of remedies” " or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s 's action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s 's right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ ' obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s 's bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminatedfull.
(g) Each Loan Party’s 's liability under this Section is limited to an amount not to exceed on any determination date the greater of (i1) or (ii2):
(i1) The net amount of all Loans made to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii2) The Loan Party’s 's Allocable Amount, after taking into account, among other things, that Loan Party’s 's right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Cross-Guaranty. (a) Notwithstanding Each Borrower hereby agrees that the Loan Parties are such Borrower is jointly and severally liable for all Obligationsfor, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party hereby absolutely and unconditionally guarantees to the Administrative Agent, Collateral Agent and each Lender, the Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, acceleration or otherwise) and performance of of, all Obligations owed or hereafter owing to Agent, Collateral Agent and the Lenders by each other Borrower (excluding Excluded Hedging “Guaranteed Obligations”). Each Loan Party’s Guaranty Borrower agrees that its guaranty obligation is in addition to all other Guaranty obligations and hereunder is a continuing guaranty of payment and performance Guaranty (and not a collection Guaranty)of collection, and that its obligations under this Section are Article 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Article 12 shall be absolute and unconditional, irrespective of, and not affected unaffected by:
(ia) The the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document, document or instrument to which the other Loan Parties are any Borrower is or may become a party.;
(iib) The Administrative Agent or the Lendersabsence of any action, as applicableagainst any Person other than such Borrower, not enforcing the Loan Documents to enforce this Agreement (including this Section).Article 12) or any other Loan Document or the waiver or consent by the Agent, the Collateral Agent and the Lenders with respect to any of the provisions thereof;
(iiic) The the existence, valuevalue or condition of, or condition failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any Collateralaction, by the Agent, the Administrative Collateral Agent not perfecting its Lien on and the Lenders in respect thereof (including the release of any Collateral, the Administrative Agent releasing any Collateral, or any Person liable for the Obligations.such security);
(ivd) Any the insolvency of any Credit Party; or
(e) any other action or circumstances that could be might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might Borrower shall be in conflict with the terms of this Section. Each Loan Party represents, warrantsregarded, and agrees that its obligations under this Section are not and will not shall be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position position, as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan DocumentsGuaranteed Obligations.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party:
(i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminated.
(g) Each Loan Party’s liability under this Section is limited to an amount not to exceed on any determination date the greater of (i) or (ii):
(i) The net amount of all Loans to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii) The Loan Party’s Allocable Amount, after taking into account, among other things, that Loan Party’s right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Sources: Credit Agreement (Northland Cable Properties Seven Limited Partnership)
Cross-Guaranty. (a) Notwithstanding In order to induce the Lenders, Administrative Agent and Term Loan B Agent to execute and deliver this Agreement and to make the extensions of credit hereunder, and in consideration thereof, each Borrower hereby agrees that the Loan Parties are such Borrower is jointly and severally liable for all Obligationsfor, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party hereby absolutely and unconditionally guarantees to the Administrative Agent, Term Loan B Agent and each Lender, Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, acceleration or otherwise) and performance of of, all Obligations (excluding Excluded Hedging Obligations)owed or hereafter owing to Administrative Agent, Term Loan B Agent and Lenders by each other Borrower. Each Loan Party’s Guaranty Borrower agrees that its guaranty obligation is in addition to all other Guaranty obligations and hereunder is a continuing guaranty of payment and performance Guaranty (and not a collection Guaranty)of collection, and that its obligations under this Section are 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and not affected unaffected by:,
(i) The 12.1.1. the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document, document or instrument to which the other Loan Parties are any Borrower is or may become a party.;
(ii) The Administrative Agent or 12.1.2. the Lenders, as applicable, not enforcing the Loan Documents absence of any action to enforce this Agreement (including this Section).Section 12) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(iii) The 12.1.3. the existence, valuevalue or condition of, or condition failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any Collateralaction, by Administrative Agent, Term Loan B Agent and Lenders in respect thereof (including the Administrative Agent not perfecting its Lien on release of any Collateralsuch security);
12.1.4. the insolvency of any Borrower, the Administrative Agent releasing any Collateral, Subsidiary of any Borrower or any Person liable for the Obligations.Guarantor; or
(iv) Any 12.1.5. any other action or circumstances that could be which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might Borrower shall be in conflict with the terms of this Section. Each Loan Party represents, warrantsregarded, and agrees that its obligations under this Section are not and will not shall be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position position, as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan Documentsguaranteed hereunder.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party:
(i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminated.
(g) Each Loan Party’s liability under this Section is limited to an amount not to exceed on any determination date the greater of (i) or (ii):
(i) The net amount of all Loans to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii) The Loan Party’s Allocable Amount, after taking into account, among other things, that Loan Party’s right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Cross-Guaranty. (a) Notwithstanding Each Loan Party hereby agrees that the such Loan Parties are Party is jointly and severally liable for all Obligationsfor, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party hereby absolutely and unconditionally guarantees to the Administrative Agent Lender and each Lender, and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, acceleration or otherwise) and performance of of, all Obligations (excluding Excluded Hedging Obligations)owed or hereafter owing to Lender by each other Loan Party. Each Loan Party’s Guaranty Party agrees that its guaranty obligation is in addition to all other Guaranty obligations and hereunder is a continuing guaranty of payment and performance Guaranty (and not a collection Guaranty)of collection, and that its obligations under this Section are 16 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 16 shall be absolute and unconditional, irrespective of, and not affected unaffected by:
(ia) The the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document, document or instrument to which the other any Loan Parties are Party is or may become a party.;
(iib) The Administrative Agent or the Lenders, as applicable, not enforcing the Loan Documents absence of any action to enforce this Agreement (including this Section).Section 16) or any other Loan Document, or the waiver or consent by Lender with respect to any of the provisions hereof or thereof;
(iiic) The the existence, valuevalue or condition of, or condition failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any Collateralaction, by Lender in respect thereof (including the Administrative Agent not perfecting its Lien on release of any Collateral, such security);
(d) the Administrative Agent releasing insolvency of any Collateral, Loan Party or any Person liable for the Obligations.other Person; or
(ive) Any the current or future existence of other guarantors, including any of the Subsidiaries, and the Lenders’ or the Collateral Agent’s dealings with such other guarantors, including any release of one or more of such guarantors;
(f) to the maximum extent permitted by applicable law, any other action or circumstances that could be might otherwise constitute a legal or equitable discharge, release or defense of a surety or guarantor.
(b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might shall be in conflict with the terms of this Section. Each Loan Party represents, warrantsregarded, and agrees that its obligations under this Section are not and will not shall be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position position, as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan Documentsguaranteed hereunder.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party:
(i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminated.
(g) Each Loan Party’s liability under this Section is limited to an amount not to exceed on any determination date the greater of (i) or (ii):
(i) The net amount of all Loans to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii) The Loan Party’s Allocable Amount, after taking into account, among other things, that Loan Party’s right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Cross-Guaranty. (a) Notwithstanding Debtor hereby agrees that the Loan Parties are jointly Debtor is JOINTLY SEVERALLY AND IN SOLIDO liable for, and severally liable for all Obligations, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party hereby absolutely and unconditionally guarantees to the Administrative Agent Lender and each Lender, and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, acceleration or otherwise) and performance of, all Indebtedness owed or hereafter owing to Lender by Debtor; provided TCI and TLI will guaranty only the payment of all the Factoring Obligations (excluding Excluded Hedging and not the performance of the Factoring Obligations). Each Loan Party’s Guaranty Debtor agrees that its guaranty obligation is in addition to all other Guaranty obligations and hereunder is a continuing guaranty of payment and performance Guaranty (and not a collection Guaranty)of collection, and that its obligations under this Section are 2(b) shall not be discharged until payment and performance (subject to the proviso in the immediately preceding sentence) in full of the Indebtedness has occurred, and that its obligations under this Section 2(b) shall be absolute and unconditional, irrespective of, and not affected unaffected by:
(i) The the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document, document or instrument to which the other Loan Parties are any Debtor is or may become a party.;
(ii) The Administrative Agent the absence of any action to enforce this Agreement, including this Section 2(b), or any other Loan Document or the Lenders, as applicable, not enforcing waiver or consent by Lender with respect to any of the Loan Documents (including this Section).provisions thereof;
(iii) The the existence, valuevalue or condition of, or condition failure to perfect its lien against, any security or Collateral for the Indebtedness or any action, or the absence of any action, by Lender in respect thereof (including the release of any such security or Collateral, the Administrative Agent not perfecting its Lien on any Collateral, the Administrative Agent releasing any Collateral, or any Person liable for the Obligations.);
(iv) Any the insolvency of any Obligor; or
(v) any other action or circumstances circumstance that could be might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might Debtor shall be in conflict with the terms of this Section. Each Loan Party represents, warrantsregarded, and agrees that its obligations under this Section are not and will not shall be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position position, as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against Indebtedness guaranteed hereunder. Notwithstanding any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan Documents.
(d) Notwithstanding anything provision herein contained to the contrary in this Agreement or in any other Loan Documentcontrary, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party:
(i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminated.
(g) Each Loan PartyDebtor’s liability under this Section 2(b), which liability is in addition to amounts for which such Debtor is liable under Section 2(a), shall be limited to an amount not to exceed on as of any date of determination date the greater of of: (i) or (ii):
(i) The the net amount of all Loans advanced to or for the benefit of the other Loan Parties any Debtor under this Agreement and then re-loaned or otherwise transferred to to, or directly benefiting for the subject Loan Party.
benefit of, Debtor; and (ii) The Loan Party’s Allocable Amountthe amount that could be claimed by Lender from Debtor under this Section 2(b) without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, that Loan PartyDebtor’s right of contribution and indemnification from each other Debtor. To the extent that Debtor shall make a payment under this Section 2(b) of all or any of the Indebtedness (other Loan Parties than Loans made to Debtor for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any Debtor, exceeds the amount that such Debtor would otherwise have paid if each Debtor had paid the aggregate Indebtedness satisfied by such Guarantor Payment in the same proportion that such Debtor’s Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of Debtor as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Indebtedness, such Debtor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Debtor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Debtor shall be equal to the maximum amount of the claim that could then be recovered from such Debtor under this Section 2(b) without rendering such claim voidable or avoidable under Section 14.4548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. This Section 2(b) is intended only to define the relative rights of Debtor and nothing set forth herein is intended to or shall impair the obligations of Debtor, jointly, severally and in solido, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement. Nothing contained in this Section 2(b) shall limit the liability of any Debtor to pay the Loans made directly or indirectly to that Debtor and accrued interest, fees and expenses with respect thereto for which such Debtor shall be primarily liable. The liability of Debtor under this Section 2(b) is in addition to and shall be cumulative with all other liabilities of Debtor to Lender under the Loan Documents to which such Debtor is a party, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
Appears in 1 contract
Sources: Loan and Security Agreement (Teletouch Communications Inc)
Cross-Guaranty. (a) Notwithstanding Each Borrower hereby agrees that the Loan Parties are such Borrower is jointly and severally liable for all Obligationsfor, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party hereby absolutely and unconditionally guarantees to the Administrative Agent, Revolver Agent and each Lender, Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, acceleration or otherwise) and performance of of, all Obligations (excluding Excluded Hedging Obligations)owed or hereafter owing to Administrative Agent, Revolver Agent and Lenders by each other Borrower. Each Loan Party’s Guaranty Borrower agrees that its guaranty obligation is in addition to all other Guaranty obligations and hereunder is a continuing guaranty of payment and performance Guaranty (and not a collection Guaranty)of collection, and that its obligations under this Section are SECTION 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this SECTION 12 shall be absolute and unconditional, irrespective of, and not affected unaffected by:,
(ia) The the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document, document or instrument to which the other Loan Parties are any Borrower is or may become a party.;
(iib) The Administrative Agent or the Lenders, as applicable, not enforcing the Loan Documents absence of any action to enforce this Agreement (including this Section).SECTION 12) or any other Loan Document or the waiver or consent by Administrative Agent, Revolver Agent and Lenders with respect to any of the provisions thereof;
(iiic) The the existence, valuevalue or condition of, or condition failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any Collateralaction, by Administrative Agent, Revolver Agent and Lenders in respect thereof (including the Administrative Agent not perfecting its Lien on release of any Collateral, the Administrative Agent releasing any Collateral, or any Person liable for the Obligations.such security);
(ivd) Any the insolvency of any Credit Party; or
(e) any other action or circumstances that could be which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might Borrower shall be in conflict with the terms of this Section. Each Loan Party represents, warrantsregarded, and agrees that its obligations under this Section are not and will not shall be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position position, as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan Documentsguaranteed hereunder.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party:
(i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminated.
(g) Each Loan Party’s liability under this Section is limited to an amount not to exceed on any determination date the greater of (i) or (ii):
(i) The net amount of all Loans to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii) The Loan Party’s Allocable Amount, after taking into account, among other things, that Loan Party’s right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Cross-Guaranty. (a) Notwithstanding that the Loan Parties Borrowers are jointly and severally liable for all Obligations, if for any reason the Loan Parties Borrowers are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section 12.10 apply and each Loan Party Borrower absolutely and unconditionally guarantees to the Administrative Agent Lender and each Lender, and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, or otherwise) and performance of all Obligations (excluding Excluded Hedging Obligations). Each Loan Party’s Guaranty Borrower's guaranty obligation is in addition to all other Guaranty guaranty obligations and is a payment and performance Guaranty guaranty (and not a collection Guarantyguaranty), and its obligations under this Section 12.10 are absolute and unconditional, irrespective of, and not affected by:
by (i) The the genuineness, validity, regularity, enforceability or any future amendment of, or change in, any other Loan Document or any other agreement, document, or instrument to which the other Loan Parties are or may become a party.
; (ii) The Administrative Agent or the Lenders, as applicable, Lender not enforcing the Loan Documents (including this SectionSection 12.10).
; (iii) The the existence, value, or condition of any Collateral, the Administrative Agent Lender not perfecting its Lien on any Collateral, the Administrative Agent Lender releasing any Collateral, or any Person liable for the Obligations.
; or (iv) Any any other action or circumstances that could be a legal or equitable defense of a surety or guarantor.
(b) The Administrative Agent Lender does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent Lender may proceed, before, after, or at the same time to enforce its rights under this Section 12.10 and against any Collateral.
(c) Each Loan Party ▇▇▇▇▇▇▇▇ waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party Borrower waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ ' financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party ▇▇▇▇▇▇▇▇ also waives the benefit of all provisions of law that are or might be in conflict with the terms of this SectionSection 12.10. Each Loan Party Borrower represents, warrants, and agrees that its obligations under this Section 12.10 are not and will not be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s Borrower's obligations under this Section 12.10 remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party Borrower is in the same position as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, Lender proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section 12.10 (including the waivers), none of the Administrative Agent or any Lender ▇▇▇▇▇▇ would not enter into the Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated), each Loan Party:
Borrower (i) Subordinates irrevocably subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
; (ii) Irrevocably irrevocably subordinates and defers any “"claim” " (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent Lender against any Person (including the other Loan Parties).
; and (iii) Acknowledges acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders Lender and does not limit or otherwise affect that Loan Party’s 's liability or the enforceability of this Section 12.10; and (y) that the Administrative Agent, each Lender, Lender and their its respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this SectionSection 12.10.
(e) If the Administrative Agent Lender enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent Lender may, at its sole optiondiscretion, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the ObligationsSection 12.10. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty guaranty in this Section 12.10 is a continuing Guaranty that remains in full force and effect until the Obligations have been are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminatedfull.
(g) Each Loan Party’s liability under this Section is limited to an amount not to exceed on any determination date the greater of (i) or (ii):
(i) The net amount of all Loans to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii) The Loan Party’s Allocable Amount, after taking into account, among other things, that Loan Party’s right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Sources: Master Credit and Security Agreement (Salona Global Medical Device Corp)
Cross-Guaranty. (a) Notwithstanding that the Loan Parties are jointly and severally liable for all Obligations, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and severally liable for all Obligations, then provisions of this Section apply and each Loan Party absolutely and unconditionally guarantees to the Administrative Agent and each Lender, and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, or otherwise) and performance of all Obligations (excluding Excluded Hedging Obligations). Each Loan Party’s Guaranty obligation is in addition to all other Guaranty obligations and is a payment and performance Guaranty (and not a collection Guaranty), and its obligations under this Section are absolute and unconditional, irrespective of, and not affected by:
(i) The genuineness, validity, regularity, enforceability or any future amendment of, or change in, any other Loan Document or any other agreement, document, or instrument to which the other Loan Parties are or may become a party.
(ii) The Administrative Agent or the Lenders, as applicable, not enforcing the Loan Documents (including this Section).
(iii) The existence, value, or condition of any Collateral, the Administrative Agent not perfecting its Lien on any Collateral, the Administrative Agent releasing any Collateral, or any Person liable for the Obligations.
(iv) Any other action or circumstances that could be a legal or equitable defense of a surety or guarantor.
(b) The Administrative Agent does not have to proceed against any other Person (including any other Loan Party) or any Collateral before requiring payment by any one or more of the Loan Parties. The Administrative Agent may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations: (i) all defenses with respect to diligence, presentment, demand, maturity, extension of time, change in nature or form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or the terms of, the Obligations, other than payment in full of the Obligations; (ii) notice of adverse change in the other Loan Parties’ financial condition; and (iii) any other fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might be in conflict with the terms of this Section. Each Loan Party represents, warrants, and agrees that its obligations under this Section are not and will not be subject to any setoffs, defenses, or counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations have been irrevocably paid and performed in full and the Loan Documents have been terminated (other than contingent obligations with respect to which no claim has been asserted or threatened). Each Loan Party is in the same position as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that the Administrative Agent or the Lenders, as applicable, proceed against any other Loan Party or any Collateral before proceeding against, or as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), none of the Administrative Agent or any Lender would enter into the Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated), each Loan Party:
(i) Subordinates and defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Loan Documents or any other agreements.
(ii) Irrevocably subordinates and defers any “claim” (as defined in the Bankruptcy Code) against any Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by the Administrative Agent against any Person (including the other Loan Parties).
(iii) Acknowledges and agrees (x) that this subordination and deferral is intended to benefit the Administrative Agent and the Lenders and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that the Administrative Agent, each Lender, and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section.
(e) If the Administrative Agent enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), the Administrative Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, the Administrative Agent forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by the Administrative Agent and waive any claim based on that action, even if the action by the Administrative Agent results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for the Administrative Agent’s action. Any election of remedies that results in the denial or impairment of the Administrative Agent’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the Obligations. If the Administrative Agent bids at any foreclosure sale, trustee sale, or at any private sale, the Administrative Agent may bid all or less than the amount of the Obligations and the amount of the Administrative Agent’s bid need not be paid by the Administrative Agent but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by the Administrative Agent or any other bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have the effect of reducing the amount of the deficiency claim but for bidding at any sale).
(f) The Guaranty in this Section is a continuing Guaranty that remains in full force and effect until the Obligations have been are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents have been terminatedfull.
(g) Each Loan Party’s liability under this Section is limited to an amount not to exceed on any determination date the greater of (i) or (ii):
(i) The net amount of all Loans to or for the benefit of the other Loan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(ii) The Loan Party’s Allocable Amount, after taking into account, among other things, that Loan Party’s right of contribution and indemnification from the other Loan Parties under Section 14.4.
Appears in 1 contract
Sources: Credit and Security Agreement (Danimer Scientific, Inc.)