Additional Waivers. (a) The obligations of the Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments). (b) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on or arising out of the unenforceability of the Obligations or any part thereof from any cause, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, or exercise any other right or remedy available to them, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminated.
Appears in 3 contracts
Sources: Credit Agreement (Duckwall Alco Stores Inc), Credit Agreement (Duckwall Alco Stores Inc), Credit Agreement (Duckwall Alco Stores Inc)
Additional Waivers. (a) The Obligations are the joint and several obligations of each Account Party. Each Account Party hereby assumes, guarantees, and agrees to discharge all Obligations of all other obligors.
(b) To the Borrower fullest extent permitted by Applicable Law, the obligations of each Account Party hereunder shall not be affected by (i) the failure of Issuing Bank to assert any claim or demand or to enforce or exercise any right or remedy against any other obligor under the provisions of this Agreement, any other Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other agreement, including with respect to any other obligor, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Issuing Bank.
(c) To the fullest extent permitted by Applicable Law, the obligations of each Account Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsObligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoffset-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower Account Parties hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower any obligor or that would otherwise operate as a discharge of the Borrower any obligor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsObligations).
(bd) To the fullest extent permitted by Applicable Law, the Borrower each Account Party waives any defense based on or arising out of any defense of any other obligor or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other obligor, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsObligations. The Collateral Agent and the other Credit Parties Issuing Bank may, at their its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other obligor, or exercise any other right or remedy available to themthem against any other obligor, without affecting or impairing in any way the liability of the Borrower any obligor hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and cash. Pursuant to Applicable Law, each obligor waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such obligor against any other obligor, as the Revolving Credit Commitments have been terminatedcase may be, or any security.
Appears in 2 contracts
Sources: Uncommitted Letter of Credit Agreement, Uncommitted Letter of Credit Agreement (Sears Holdings Corp)
Additional Waivers. (a) The Liabilities are the joint and several obligations of each Borrower. To the Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever fullest extent permitted by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoingApplicable Law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Revolving Credit Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, or any release of the obligations of any other Borrower from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Revolving Credit Lender.
(b) The obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Revolving Credit Party Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the ObligationsLiabilities, or by any other act or omission that may or might in any manner or to any extent vary the risk of the any Borrower or that would otherwise operate as a discharge of the any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsLiabilities).
(bc) To the fullest extent permitted by Applicable Law, the each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsLiabilities. The Collateral Agent and the other Revolving Credit Parties Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the ObligationsLiabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to themthem against any other Borrower, without affecting or impairing in any way the liability of the any Borrower hereunder except to the extent that all the Obligations Liabilities have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Liabilities, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Liabilities. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Borrowers will demand, ▇▇▇ for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Agent and the Revolving Credit Commitments have been terminatedLenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 2 contracts
Sources: Loan and Security Agreement (Casual Male Retail Group Inc), Loan and Security Agreement (Casual Male Retail Group Inc)
Additional Waivers. (a) To the fullest extent permitted by Law, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement or any other Loan Document, or (iii) the failure to perfect any Lien on, or the release of, any of the Collateral or other security held by or on behalf of the Agent or any other Credit Party.
(b) The obligations of the Borrower each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of any the Agent or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower any Loan Party or that would otherwise operate as a discharge of the Borrower any Loan Party as a matter of law Law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments).
(bc) To the fullest extent permitted by Applicable Law, the Borrower each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to themthem against any other Loan Party, without affecting or impairing in any way the liability of the Borrower any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminated. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.
(d) The Obligations are the joint and several obligation of each Loan Party. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations and no Loan Party will demand, ▇▇▇ for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code.
Appears in 2 contracts
Sources: Credit Agreement (Rh), Credit Agreement (Rh)
Additional Waivers. (a) The Liabilities are the joint and several obligations of each Loan Party. To the fullest extent permitted by applicable law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of any Agent or any Revolving Credit Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Liabilities, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Revolving Credit Lender.
(b) The obligations of each Loan Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsLiabilities), including any claim of waiver, release, surrender, alteration or compromise of any of the ObligationsLiabilities, and shall not be subject to any defense or setoffset-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations Liabilities or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Revolving Credit Party Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of any of the ObligationsLiabilities, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower any Loan Party or that would otherwise operate as a discharge of the Borrower any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsLiabilities).
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the Borrower each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations Liabilities. Each Agent and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the ObligationsLiabilities, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to themthem against any other Loan Party, without affecting or impairing in any way the liability of the Borrower any Loan Party hereunder except to the extent that all the Obligations Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.
(d) Upon payment by any Loan Party of any Liabilities, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Liabilities, as more particularly set forth in an Indemnity, Subrogation and Contribution Agreement to be entered into amongst the Loan Parties. In addition, any indebtedness of any 133 Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Loan Parties will demand, ▇▇▇ for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Agent and the Revolving Credit Commitments have been terminatedLenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 2 contracts
Sources: Loan and Security Agreement (DSW Inc.), Loan and Security Agreement (DSW Inc.)
Additional Waivers. (a) The obligations of the Borrower Parent Company irrevocably waives any right (except such as shall be required by Applicable Law and cannot be subject waived) to any reduction, limitation, impairment require the Administrative Agent or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligationsother Secured Creditors to (i) proceed against the Borrower, and shall not be subject any Guarantor or any other Person, (ii) proceed against or exhaust any Collateral or other security received from the Borrower, any Subsidiary Guarantor or any other Person, or (iii) pursue any other remedy available to any defense the Administrative Agent or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of to any of the Obligations or otherwiseother Secured Creditors. Without limiting the generality of the foregoing, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments).
(b) To the fullest extent permitted by Applicable Law, the Borrower The Parent Company irrevocably waives any defense based on or arising out of any defense available to the Borrower, any Subsidiary Guarantor or any other Person, other than payment in full of the Guaranteed Obligations, including, without limitation, any defense based on or arising out of the disability of the Borrower, any other guarantor or any other Person, or based on the unenforceability of the Obligations all or any part thereof of the Guaranteed Obligations from any cause, or the cessation from any cause of the liabilities of the Borrower or of any other Credit Party, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsGuaranteed Obligations. The Collateral Administrative Agent and the other Credit Parties Secured Creditors may, at their election, foreclose on any Collateral or other security held by one the Administrative Agent, the Collateral Agent or more any of them the other Secured Creditors by one or more judicial or nonjudicial salesSales, accept an assignment whether or not any aspect of any such security in lieu of foreclosure, compromise or adjust any part of the ObligationsSale is commercially reasonable, or exercise any other right or remedy available to themthat the Administrative Agent or any of the other Secured Creditors may have against the Borrower, any other Credit Party or any other Person, or against any Collateral or other security, without affecting or impairing in any way the liability of the Borrower hereunder except Parent Company hereunder, EXCEPT to the extent that all the Guaranteed Obligations have been indefeasibly paid in full in cash cash. The Parent Company irrevocably waives any defense arising out of any such election by the Administrative Agent or by any of the other Secured Creditors, even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of the Parent Company against the Borrower, any other Credit Party or any other Person, or against any Collateral or other security.
(b) The Parent Company irrevocably waives all presentments, demands for performance, protests and notices, including, without limitation, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of its Guaranty, and notices of the existence, creation or incurrence of any new or additional Guaranteed Obligations. The Parent Company assumes all responsibility for being and keeping itself informed of the financial condition and Property of the Borrower and of each of the other Credit Parties, and of all other circumstances bearing upon the risk of nonpayment of any of the Guaranteed Obligations and the Revolving Credit Commitments nature, scope and extent of the risks which the Parent Company assumes and incurs hereunder, and agrees that the Administrative Agent and the other Secured Creditors shall have been terminatedno duty to advise the Parent Company of any information known to them regarding any of such circumstances or risks.
Appears in 1 contract
Additional Waivers. Owner hereby waives and relinquishes all rights and remedies accorded by applicable law to sureties or guarantors and agrees not to assert or take advantage of any such rights or remedies, including without limitation (a) The obligations any right to require Administrative Agent or the Banks to proceed against any Portfolio Entity or any other Person or to proceed against or exhaust any security held by Administrative Agent or the Banks at any time or to pursue any other remedy in Administrative Agent's or the Banks' power before proceeding against Owner, (b) any defense that may arise by reason of the Borrower shall not incapacity, lack of power or authority, death, dissolution, merger, termination or disability of any Portfolio Entity or any other Person or the failure of Administrative Agent or the Banks to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any Portfolio Entity or any other Person, (c) demand, presentment, protest and notice of any kind, including without limitation notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Portfolio Entity, Administrative Agent, the Banks, any endorser or creditor of the foregoing or on the part of any other Person under this or any other instrument in connection with any obligation or evidence of indebtedness held by Administrative Agent or the Banks as collateral or in connection with any Obligations, (d) any defense based upon an election of remedies by Administrative Agent or the Banks, including without limitation an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of Owner, the right of Owner to proceed against a Portfolio Entity or another Person for reimbursement, or both, (e) any defense based on any offset against any amounts which may be subject owed by any Person to any reduction, limitation, impairment or termination Owner for any reason whatsoever, (f) any defense based on any act, failure to act, delay or omission whatsoever on the part of a Portfolio Entity of the failure by a Portfolio Entity to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the indefeasible principal provided, that, upon payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and this Agreement shall not no longer be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations force or otherwise. Without limiting the generality of the foregoingeffect, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Portfolio Entity against Administrative Agent, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent Banks or any other Person under the Credit Party Documents, (i) any duty on the part of Administrative Agent or the Banks to assert disclose to Owner any claim facts Administrative Agent or demand the Banks may now or hereafter know about any Portfolio Entity, regardless of whether Administrative Agent or the Banks have reason to enforce believe that any remedy under this Agreementsuch facts materially increase the risk beyond that which Owner intends to assume, any other Loan Document or any other agreementhave reason to believe that such facts are unknown to Owner, by any waiver or modification of any provision of any thereofhave a reasonable opportunity to communicate such facts to Owner, any default, failure or delay, willful or otherwise, in the performance of any since Owner acknowledges that Owner is fully responsible for being and keeping informed of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary financial condition of the Portfolio Entities and of all circumstances bearing on the risk of non-payment of any obligations and liabilities hereby guaranteed, (j) the Borrower or fact that would otherwise operate as a discharge of any Portfolio Entity may at any time in the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash future dispose of all the Obligations after the termination or part of the Revolving Credit Commitments).
its direct or indirect interest in any other Portfolio Entity, (bk) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on any change in the time, manner or arising out place of any payment under, or in any other term of, the unenforceability of the Obligations Credit Documents or any part thereof from any causeother amendment, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties mayrenewal, at their electionextension, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosureacceleration, compromise or adjust waiver of or any part consent or departure from the terms of the ObligationsCredit Documents, (1) any defense arising because of Administrative Agent's or exercise any other right or remedy available to themthe Banks' election, without affecting or impairing in any way proceeding instituted under the liability Federal Bankruptcy Code, of the Borrower hereunder except to application of Section 1111(b)(2) of the extent that all Federal Bankruptcy Code, and (m) any defense based upon any borrowing or grant of a security interest under Section 364 of the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedFederal Bankruptcy Code.
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Additional Waivers. (a) The Obligations are the joint and several obligations of each Borrower. To the fullest extent permitted by Applicable Law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any other Secured Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) The obligations of each Borrower to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than 101 the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsObligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoffset-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful wilful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the any Borrower or that would otherwise operate as a discharge of the any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsObligations).
(bc) To the fullest extent permitted by Applicable Law, the each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsObligations. The Collateral Agent and the other Credit Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to themthem against any other Borrower, without affecting or impairing in any way the liability of the any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or otherwise attempt to collect any such indebtedness. If ▇▇y amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Revolving Credit Commitments have been terminatedCollateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
(e) Without limiting the generality of the foregoing, or of any other waiver or other provision set forth in this Agreement, each Borrower hereby absolutely, knowingly, unconditionally, and expressly waives any and all claim, defense or benefit arising directly or indirectly under any one or more of Sections 2787 to 2855 inclusive of the California Civil Code or any similar law of California.
Appears in 1 contract
Additional Waivers. Owner hereby waives and relinquishes all rights and remedies accorded by applicable law to sureties or guarantors and agrees not to assert or take advantage of any such rights or remedies, including without limitation (a) The obligations any right to require Administrative Agent or the Banks to proceed against any Portfolio Entity or any other Person or to proceed against or exhaust any security held by Administrative Agent or the Banks at any time or to pursue any other remedy in Administrative Agent's or the Banks' power before proceeding against Owner, (b) any defense that may arise by reason of the Borrower shall not incapacity, lack of power or authority, death, dissolution, merger, termination or disability of any Portfolio Entity or any other Person or the failure of Administrative Agent or the Banks to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any Portfolio Entity or any other Person, (c) demand, presentment, protest and notice of any kind, including without limitation notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Portfolio Entity, Administrative Agent, the Banks, any endorser or creditor of the foregoing or on the part of any other Person 11 461 under this or any other instrument in connection with any obligation or evidence of indebtedness held by Administrative Agent or the Banks as collateral or in connection with any Obligations, (d) any defense based upon an election of remedies by Administrative Agent or the Banks, including without limitation an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of Owner, the right of Owner to proceed against a Portfolio Entity or another Person for reimbursement, or both, (e) any defense based on any offset against any amounts which may be subject owed by any Person to any reduction, limitation, impairment or termination Owner for any reason whatsoever, (f) any defense based on any act, failure to act, delay or omission whatsoever on the part of a Portfolio Entity of the failure by a Portfolio Entity to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the indefeasible principal provided, that, upon payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and this Agreement shall not no longer be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations force or otherwise. Without limiting the generality of the foregoingeffect, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Portfolio Entity against Administrative Agent, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent Banks or any other Person under the Credit Party Documents, (i) any duty on the part of Administrative Agent or the Banks to assert disclose to Owner any claim facts Administrative Agent or demand the Banks may now or hereafter know about any Portfolio Entity, regardless of whether Administrative Agent or the Banks have reason to enforce believe that any remedy under this Agreementsuch facts materially increase the risk beyond that which Owner intends to assume, any other Loan Document or any other agreementhave reason to believe that such facts are unknown to Owner, by any waiver or modification of any provision of any thereofhave a reasonable opportunity to communicate such facts to Owner, any default, failure or delay, willful or otherwise, in the performance of any since Owner acknowledges that Owner is fully responsible for being and keeping informed of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary financial condition of the Portfolio Entities and of all circumstances bearing on the risk of non-payment of any obligations and liabilities hereby guaranteed, (j) the Borrower or fact that would otherwise operate as a discharge of any Portfolio Entity may at any time in the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash future dispose of all the Obligations after the termination or part of the Revolving Credit Commitments).
its direct or indirect interest in any other Portfolio Entity, (bk) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on any change in the time, manner or arising out place of any payment under, or in any other term of, the unenforceability of the Obligations Credit Documents or any part thereof from any causeother amendment, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties mayrenewal, at their electionextension, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosureacceleration, compromise or adjust waiver of or any part consent or departure from the terms of the ObligationsCredit Documents, (l) any defense arising because of Administrative Agent's or exercise any other right or remedy available to themthe Banks' election, without affecting or impairing in any way proceeding instituted under the liability Federal Bankruptcy Code, of the Borrower hereunder except to application of Section 1111(b)(2) of the extent that all Federal Bankruptcy Code, and (m) any defense based upon any borrowing or grant of a security interest under Section 364 of the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedFederal Bankruptcy Code.
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Additional Waivers. (a) In addition, and without limitation on any waivers contained in this Agreement or the other Loan Documents:
a. Pledgor hereby unconditionally waives any defense to the enforcement of this Agreement based on the characterization of Pledgor as a guarantor and without limitation.
b. The obligations Obligations of the Borrower Pledgor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment remain in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligationsforce and effect without regard to, and shall not be subject affected or impaired by the following, any of which may be taken without the consent of, or notice to Pledgor, nor shall any of the following give Pledgor any recourse or right of action against Lender:
(1) Any express or implied amendment, modification, renewal, addition, supplement, extension (including extensions beyond the original term) or acceleration of or to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidityLoan Documents;
(2) Any exercise or non‑exercise by Lender of any right or privilege under the Loan Documents;
(3) Any bankruptcy, illegality insolvency, reorganization, composition, adjustment, dissolution, liquidation or unenforceability other like proceeding relating to Pledgor, or any guarantor (which term shall include any other party at any time directly or contingently liable for any Credit Party’s Obligations under the Loan Documents) or any affiliate of Pledgor or any guarantor, or any action taken with respect to the Loan Documents by any trustee or receiver, or by any court, in any such proceeding, whether or not Pledgor shall have had notice or knowledge of any of the foregoing;
(4) Any release or discharge of any Credit Party or any guarantor from its liability under any of the Loan Documents or any release or discharge of any endorser or guarantor or of any other party at any time directly or contingently liable for the Obligations evidenced by the Loan Documents;
(5) Any subordination, compromise, release (by operation of law or otherwise. Without limiting the generality ), discharge, compound, collection, or liquidation of any or all of the foregoingPledged Collateral or any other collateral described in any of the Loan Documents or otherwise in any manner, or any substitution with respect thereto;
(6) Any assignment or other transfer of any of the Loan Documents;
(7) Any acceptance of partial performance of the Obligations;
(8) Any transfer or consent to the transfer of any Healthcare Facility or any portion thereof or any collateral described in the Loan Documents or otherwise; and
(9) Any bid or purchase at any sale of any collateral described in the Loan Documents or otherwise, or the release of the same by Lender.
c. Pledgor unconditionally waives any defense to the enforcement of this Agreement, including:
(1) All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Agreement or any Loan Document;
(2) Any right to require Lender to proceed against any other Person (including without limitation, any Credit Party or any guarantor) at any time or to proceed against or exhaust any security held by Lender at any time or to pursue any other remedy whatsoever at any time;
(3) The defense of any statute of limitations affecting the liability of Pledgor hereunder, the obligations liability of any Credit Party or any guarantor under the Loan Documents, or the enforcement hereof, to the extent permitted by law;
(4) Any defense arising by reason of any invalidity or unenforceability of (or any limitation of liability in) any of the Borrower hereunder shall Loan Documents or any disability of any Credit Party, Pledgor or any guarantor or of any manner in which Lender has exercised its rights and remedies under the Loan Documents, or by any cessation from any cause whatsoever of the liability of any Credit Party, Pledgor or any guarantor;
(5) Without limitation on clause (4) above, any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any Credit Party or any principal of any Credit Party or any defect in the formation thereof;
(6) Any defense based upon the application by any Credit Party of the proceeds of the Loans or other Obligations for purposes other than the purposes represented by such Credit Party to Lender or intended or understood by Lender or Pledgor;
(7) Any defense based upon an election of remedies by Lender, including any election to proceed by judicial or nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not be discharged every aspect of any foreclosure sale is commercially reasonable, or impaired any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise affected by impairs the failure subrogation rights of any Agent Pledgor or the rights of Pledgor to proceed against any other Credit Party for reimbursement, or both;
(8) Any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other aspects more burdensome than that of a principal;
(9) Any defense based upon Lender’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute;
(10) Any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code;
(11) Any duty of Lender to assert advise Pledgor of any claim information known to Lender regarding the financial condition of any Credit Party, or demand any guarantor all other circumstances affecting any Credit Party or any guarantor’s ability to perform its Obligations to Lender, it being agreed that Pledgor assumes the responsibility for being and keeping informed regarding such condition or any such circumstances; and
(12) Any right of subrogation, reimbursement, exoneration, contribution or indemnity, or any right to enforce any remedy under this Agreementwhich Lender now has or may hereafter have against any other Person or any benefit of, or any right to participate in, any other Loan Document security now or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments).
(b) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on or arising out of the unenforceability of the Obligations or any part thereof from any cause, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security hereafter held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, or exercise any other right or remedy available to them, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedLender.
Appears in 1 contract
Additional Waivers. (a) The Liabilities are the joint and several obligations of each Borrower. To the Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever fullest extent permitted by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoingApplicable Law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Term Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, or any release of the obligations of any other Borrower from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Term Lender.
(b) The obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party Term Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the ObligationsLiabilities, or by any other act or omission that may or might in any manner or to any extent vary the risk of the any Borrower or that would otherwise operate as a discharge of the any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsLiabilities).
(bc) To the fullest extent permitted by Applicable Law, the each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsLiabilities. The Collateral Agent and the other Credit Parties Term Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the ObligationsLiabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to themthem against any other Borrower, without affecting or impairing in any way the liability of the any Borrower hereunder except to the extent that all the Obligations Liabilities have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Liabilities, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Liabilities. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Borrowers will demand, s▇▇ for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Agent and the Revolving Credit Commitments have been terminatedTerm Lenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Destination Xl Group, Inc.)
Additional Waivers. (a) The obligations Secured Obligations are the joint and several obligation of each Obligor. To the fullest extent permitted by applicable law, the Secured Obligations of each Obligor shall not be affected by (i) the failure of the Borrower Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Obligor under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Lender.
(b) The Secured Obligations of each Obligor shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments)reason, including any claim of waiver, release, surrender, alteration or compromise of any of the Secured Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Secured Obligations or otherwise. Without limiting the generality of the foregoing, the obligations Secured Obligations of the Borrower each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party the Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments).59
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the Borrower each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Secured Obligations or any part thereof from any cause, other than or the indefeasible payment in full in cash of all the Obligations and the termination cessation from any cause of the Revolving Credit Commitmentsliability of any other Obligor. The Collateral Agent and the other Credit Parties Lender may, at their its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Secured Obligations, make any other accommodation with any other Obligor, or exercise any other right or remedy available to themthem against any other Obligor, without affecting or impairing in any way the liability of any Obligor hereunder. Each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedcase may be, or any security.
Appears in 1 contract
Additional Waivers. (a) To the fullest extent permitted by applicable law, the obligations of Borrower shall not be affected by (i) the failure of Lender to assert any claim or demand or to enforce or exercise any right or remedy against Borrower under the provisions of this Agreement, any other Transaction Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement or any other Transaction Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Lender.
(b) The obligations of the Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsObligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party the Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Transaction Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsObligations).
(b) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on or arising out of the unenforceability of the Obligations or any part thereof from any cause, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties Lender may, at their its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with Borrower, or exercise any other right or remedy available to themit against Borrower, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedcash. Borrower waives any defense arising out of any such election.
Appears in 1 contract
Additional Waivers. Without limiting the foregoing, Guarantor hereby waives and relinquishes all rights and remedies now or thereafter accorded by applicable law to sureties and/or guarantors or any other accommodation parties, under the any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies, including, without limitation, (a) The obligations any right to require Buyers to proceed against Sellers or to pursue any other remedy in Buyers’ power before proceeding against Guarantor; (b) any defense based upon any lack of authority of the Borrower shall not be subject officers, directors, partners or agents acting or purporting to act on behalf of seller, or any reduction, limitation, impairment or termination for defect in the formation of Sellers; (c) any defense that may arise by reason (other than the indefeasible payment in full in cash of the Obligations after incapacity, lack of authority, insolvency, bankruptcy, death or disability of Sellers or the termination failure of Buyers to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of Sellers; (d) notice of the Revolving Credit Commitments)existence, including creation or incurrence of any claim new or additional indebtedness or obligation of waiverSellers under the MTAs or PSAs or of any action or non-action on the part of the Sellers under the MTAs or PSAs or in connection with any Guaranteed Obligation; (e) any defense based upon an election of remedies by Buyers which destroys or otherwise impairs any subrogation rights of Guarantor or any right of Guarantor to proceed against Sellers for reimbursement; or both; (f) any defense arising because of Buyers’ election, releasein any proceeding instituted under the federal bankruptcy code or any state debtor relief laws; (g) any defense based upon the validity or enforceability of the MTAs or PSAs; (h) any defense or rights arising under any appraisal, surrendervaluation, alteration stay, extension, marshaling of assets, redemption or compromise similar law or requirement, which may delay, prevent or otherwise affect the performance by Guarantor of any of the Guaranteed Obligations; (i) diligence, presentment and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity demand; and (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments).
(bj) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on any borrowing or arising out grant of a security interest under Section 364 of the unenforceability of the Obligations or any part thereof from any cause, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, or exercise any other right or remedy available to them, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedfederal bankruptcy code.
Appears in 1 contract
Sources: Guarantee of Indemnification Obligations (Assisted 4 Living, Inc.)
Additional Waivers. (a) The Liabilities are the joint and several obligations of each Borrower. To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of the Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Liabilities, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Lender.
(b) The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsLiabilities), including any claim of waiver, release, surrender, alteration or compromise of any of the ObligationsLiabilities, and shall not be subject to any defense or setoffset-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations Liabilities or otherwise. Without limiting the generality of the foregoing, the obligations of the each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party the Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of any of the ObligationsLiabilities, or by any other act or omission that may or might in any manner or to any extent vary the risk of the any Borrower or that would otherwise operate as a discharge of the any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsLiabilities).
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsLiabilities. The Collateral Agent and the other Credit Parties Lender may, at their its election, foreclose on any security held by one or more of them the Lender by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the ObligationsLiabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to themthem against any other Borrower, without affecting or impairing in any way the liability of the any Borrower hereunder except to the extent that all the Obligations Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Liabilities, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Liabilities. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Borrowers will demand, ▇▇▇ for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Revolving Credit Commitments have been terminatedLender to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Additional Waivers. (a) The Liabilities are the joint and several obligations of each Obligor. To the Borrower fullest extent permitted by applicable law, the obligations of each Obligor hereunder shall not be affected by (i) the failure of the Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Obligor under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Obligor of the Liabilities under this Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Lender.
(b) The obligations of each Obligor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsLiabilities), including any claim of waiver, release, surrender, alteration or compromise of any of the ObligationsLiabilities, and shall not be subject to any defense or setoffset-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations Liabilities or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party the Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful wilful or otherwise, in the performance of any of the ObligationsLiabilities, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower any Obligor or that would otherwise operate as a discharge of the Borrower any Obligor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsLiabilities).
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the Borrower each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Obligations Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Obligor, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsLiabilities. The Collateral Agent and the other Credit Parties Lender may, at their its election, foreclose on any security held by one or more of them it by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the ObligationsLiabilities, make any other accommodation with any other Obligor, or exercise any other right or remedy available to themthem against any other Obligor, without affecting or impairing in any way the liability of the Borrower any Obligor hereunder except to the extent that all the Obligations Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the case may be, or any security.
(d) Upon payment by any Obligor of any Liabilities, all rights of such Obligor against any other Obligor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Liabilities. In addition, any indebtedness of any Obligor now or hereafter held by any other Obligor is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Obligors will demand, ▇▇▇ for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Obligor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Obligor, such amount shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Revolving Credit Commitments have been terminatedLender to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Sources: Loan and Security Agreement (Charlotte Russe Holding Inc)
Additional Waivers. (a) The obligations Secured Obligations are the joint and several obligation of each Obligor. To the fullest extent permitted by applicable law, the Secured Obligations of each Obligor shall not be affected by (i) the failure of the Borrower Administrative Agent or any Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Obligor under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Administrative Agent or any Lender.
(b) The Secured Obligations of each Obligor shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments)reason, including any claim of waiver, release, surrender, alteration or compromise of any of the Secured Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Secured Obligations or otherwise. Without limiting the generality of the foregoing, the obligations Secured Obligations of the Borrower each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of any the Administrative Agent or any other Credit Party and the Lenders to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower any Obligor or that would otherwise operate as a discharge of the Borrower any Obligor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments)equity.
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the Borrower each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Secured Obligations or any part thereof from any cause, other than or the indefeasible payment in full in cash of all the Obligations and the termination cessation from any cause of the Revolving Credit Commitmentsliability of any other Obligor. The Collateral Agent and the other Credit Parties mayAdministrative Agent, at their its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Secured Obligations, make any other accommodation with any other Obligor, or exercise any other right or remedy available to themthem against any other Obligor, without affecting or impairing in any way the liability of any Obligor hereunder. Each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedcase may be, or any security.
Appears in 1 contract
Sources: Senior Secured Super Priority Debtor in Possession Loan Agreement (Amyris, Inc.)
Additional Waivers. Without limiting the foregoing, each of the Guarantors hereby waives and relinquishes all rights and remedies now or hereafter accorded by applicable law to sureties and/or guarantors or any other accommodation parties, under any statutory provision, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies, including, without limitation, (a) The obligations any right to require the Put Member to proceed against PMB or any other Person or to proceed against or exhaust any security held by the Put Member at any time or to pursue any other remedy in the Put Member’s power before proceeding against each of the Borrower shall not be subject to Guarantors; (b) any reduction, limitation, impairment or termination for defense based upon any reason (other than the indefeasible payment in full in cash lack of authority of the Obligations after officers, directors, partners or agents acting or purporting to act on behalf of PMB or any other Person, or any defect in the termination formation of PMB or any other Person; (c) any defense that may arise by reason of the Revolving Credit Commitments)incapacity, lack of authority, insolvency, bankruptcy, death or disability of PMB or any other guarantor (including any of the Guarantors) or other Person or the failure of the Put Member to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of waiverPMB or any other guarantor (including any of the Guarantors) or other Person; (d) notice of the existence, release, surrender, alteration creation or compromise incurring of any new or additional indebtedness or obligation of PMB under this Agreement or of any action or non-action on the part of PMB under this Agreement or in connection with any Guaranteed Obligation; (e) any defense based upon an election of remedies by the Put Member which destroys or otherwise impairs any subrogation rights of any of the Obligations, and shall not be subject to Guarantors or any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability right of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent Guarantors to proceed against PMB or any other Credit Party Person for reimbursement, or both; (f) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (g) any duty on the part of the Put Member to assert disclose to each of the Guarantors any facts the Put Member may now or hereafter know about PMB, regardless of whether the Put Member has reason to believe that any such fact materially increases the risk beyond that which each of the Guarantors intends to assume or has reason to believe that any such fact is unknown to the Guarantors or has a reasonable opportunity to communicate such fact to the Guarantors, it being understood and agreed that each of the Guarantors is fully responsible for being and keeping informed of the financial condition of PMB and of all circumstances bearing on the risk of non payment or non-performance of any Guaranteed Obligation; (h) any defense arising because of the Put Member’s election, in any proceeding instituted under the federal Bankruptcy Code; (i) any defense based upon the validity or enforceability of this Agreement; (j) all rights to insist upon, plead or in any manner whatsoever claim or demand take the benefit or to enforce any remedy under this Agreementadvantage of, any other Loan Document appraisal, valuation, stay, extension, marshaling of assets, redemption or any other agreementsimilar law or requirement, which may delay, prevent or otherwise affect the performance by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance Guarantors of any of the Guaranteed Obligations; (k) diligence, or by presentment and demand; (l) any other act or omission that may or might in requirement to mitigate any manner or to damages resulting from any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity default under this Agreement; and (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments).
(bm) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on any borrowing or arising out grant of a security interest under Section 364 of the unenforceability of the Obligations or any part thereof from any cause, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, or exercise any other right or remedy available to them, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedfederal Bankruptcy Code.
Appears in 1 contract
Sources: Formation and Contribution Agreement (Nationwide Health Properties Inc)
Additional Waivers. (a) To the fullest extent permitted by Applicable Law, the obligations of the Borrower shall not be affected by any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement or any other Loan Document, or the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Lender or any other Credit Party.
(b) The obligations of the Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsCommitment), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent the Lender or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsCommitment).
(bc) To the fullest extent permitted by Applicable applicable Law, the Borrower waives any defense based on or arising out of the unenforceability of the Obligations or any part thereof from any cause, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, or exercise any other right or remedy available to them, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedCommitment.
Appears in 1 contract
Sources: Credit Agreement (Bluefly Inc)
Additional Waivers. (ai) The Obligations are the joint and several obligations of each Borrower. To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of the Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Lender.
(ii) The obligations of the each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsObligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoffset-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party the Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful wilful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the any Borrower or that would otherwise operate as a discharge of the any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsObligations).
(biii) To the fullest extent permitted by Applicable Lawapplicable law, the each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsObligations. The Collateral Agent and the other Credit Parties Lender may, at their its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to themthem against any other Borrower, without affecting or impairing in any way the liability of the any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(iv) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or otherwise attempt to collect any such indebtedne▇▇. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Revolving Credit Commitments have been terminatedLender to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Nutramax Products Inc /De/)
Additional Waivers. (a) The Obligations are the joint and several obligations of each Borrower. To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Agent or any other Lender.
(b) The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit CommitmentsObligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoffset-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any the Agent or any other Credit Party Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Credit Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the any Borrower or that would otherwise operate as a discharge of the any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit CommitmentsObligations).
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsObligations. The Collateral Agent and the other Credit Parties Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to themthem against any other Borrower, without affecting or impairing in any way the liability of the any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or ▇▇▇erwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Revolving Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Credit Commitments have been terminatedDocuments.
Appears in 1 contract
Sources: Credit Agreement (Wickes Inc)
Additional Waivers. Owner hereby waives and relinquishes all rights and remedies accorded by applicable law to sureties or guarantors and agrees not to assert or take advantage of any such rights or remedies, including without limitation (a) The obligations any right to require Administrative Agent or the Banks to proceed against any Portfolio Entity or any other Person or to proceed against or exhaust any security held by Administrative Agent or the Banks at any time or to pursue any other remedy in Administrative Agent's or the Banks' power before proceeding against Owner, (b) any defense that may arise by reason of the Borrower shall not incapacity, lack of power or authority, death, dissolution, merger, termination or disability of any Portfolio Entity or any other Person or the failure of Administrative Agent or the Banks to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any Portfolio Entity or any other Person, (c) demand, presentment, protest and notice of any kind, including without limitation notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Portfolio Entity, Administrative Agent, the Banks, any endorser or creditor of the foregoing or on the part of any other Person 11 406 under this or any other instrument in connection with any obligation or evidence of indebtedness held by Administrative Agent or the Banks as collateral or in connection with any Obligations, (d) any defense based upon an election of remedies by Administrative Agent or the Banks, including without limitation an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of Owner, the right of Owner to proceed against a Portfolio Entity or another Person for reimbursement, or both, (e) any defense based on any offset against any amounts which may be subject owed by any Person to any reduction, limitation, impairment or termination Owner for any reason whatsoever, (f) any defense based on any act, failure to act, delay or omission whatsoever on the part of a Portfolio Entity of the failure by a Portfolio Entity to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the indefeasible principal provided, that, upon payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and this Agreement shall not no longer be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations force or otherwise. Without limiting the generality of the foregoingeffect, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Portfolio Entity against Administrative Agent, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent Banks or any other Person under the Credit Party Documents, (i) any duty on the part of Administrative Agent or the Banks to assert disclose to Owner any claim facts Administrative Agent or demand the Banks may now or hereafter know about any Portfolio Entity, regardless of whether Administrative Agent or the Banks have reason to enforce believe that any remedy under this Agreementsuch facts materially increase the risk beyond that which Owner intends to assume, any other Loan Document or any other agreementhave reason to believe that such facts are unknown to Owner, by any waiver or modification of any provision of any thereofhave a reasonable opportunity to communicate such facts to Owner, any default, failure or delay, willful or otherwise, in the performance of any since Owner acknowledges that Owner is fully responsible for being and keeping informed of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary financial condition of the Portfolio Entities and of all circumstances bearing on the risk of non-payment of any obligations and liabilities hereby guaranteed, (j) the Borrower or fact that would otherwise operate as a discharge of any Portfolio Entity may at any time in the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash future dispose of all the Obligations after the termination or part of the Revolving Credit Commitments).
its direct or indirect interest in any other Portfolio Entity, (bk) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on any change in the time, manner or arising out place of any payment under, or in any other term of, the unenforceability of the Obligations Credit Documents or any part thereof from any causeother amendment, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties mayrenewal, at their electionextension, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosureacceleration, compromise or adjust waiver of or any part consent or departure from the terms of the ObligationsCredit Documents, (l) any defense arising because of Administrative Agent's or exercise any other right or remedy available to themthe Banks' election, without affecting or impairing in any way proceeding instituted under the liability Federal Bankruptcy Code, of the Borrower hereunder except to application of Section 1111(b)(2) of the extent that all Federal Bankruptcy Code, and (m) any defense based upon any borrowing or grant of a security interest under Section 364 of the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedFederal Bankruptcy Code.
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Additional Waivers. (a) The Obligations are the joint and several obligations of each Borrower. To the Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever fullest extent permitted by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoingapplicable law, the obligations of the each Borrower hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of any Agent or any other Credit Party Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other agreement, by including with respect to any waiver other Borrower of the Obligations under this Agreement, or modification of (iii) the failure to perfect any provision of any thereofsecurity interest in, any defaultor the release of, failure or delay, willful or otherwise, in the performance of any of the Obligations, security held by or by on behalf of the Agent or any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments)Lender.
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit CommitmentsObligations. The Collateral Agent and the other Credit Parties Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to themthem against any other Borrower, without affecting or impairing in any way the liability of the any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or ▇▇▇erwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Revolving Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Credit Commitments have been terminatedDocuments.
Appears in 1 contract
Sources: Credit Agreement (Wickes Inc)
Additional Waivers. (a) The obligations Secured Obligations are the joint and several obligation of each Obligor. To the fullest extent permitted by applicable law, the Secured Obligations of each Obligor shall not be affected by (i) the failure of the Borrower Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Obligor under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Lender.
(b) The Secured Obligations of each Obligor shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments)reason, including any claim of waiver, release, surrender, alteration or compromise of any of the Secured Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Secured Obligations or otherwise. Without limiting the generality of the foregoing, the obligations Secured Obligations of the Borrower each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party the Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower any Obligor or that would otherwise operate as a discharge of the Borrower any Obligor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments)equity.
(bc) To the fullest extent permitted by Applicable Lawapplicable law, the Borrower each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Secured Obligations or any part thereof from any cause, other than or the indefeasible payment in full in cash of all the Obligations and the termination cessation from any cause of the Revolving Credit Commitmentsliability of any other Obligor. The Collateral Agent and the other Credit Parties Lender may, at their its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Secured Obligations, make any other accommodation with any other Obligor, or exercise any other right or remedy available to themthem against any other Obligor, without affecting or impairing in any way the liability of any Obligor hereunder. Each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish 44 any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedcase may be, or any security.
Appears in 1 contract
Additional Waivers. Pledgor waives any right to require Bank to (a) The obligations of the Borrower shall not be subject to proceed against any reductionperson, limitation(b) proceed against or exhaust any collateral, impairment or termination for (c) pursue any other remedy in Bank's power; and waives any defense arising by reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any disability or other defense of the ObligationsDebtor or any other person, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of cessation from any cause whatsoever of the Obligations or otherwise. Without limiting the generality liability of the foregoing, the obligations of the Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent Debtor or any other Credit Party to assert person. Until the Indebtedness is paid in full, Pledgor waives any right of subrogation, reimbursement, indemnification, and contribution (contractual, statutory or otherwise), including without limitation any claim or demand right of subrogation under the Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute, arising from the existence or performance of this Security Agreement, and Pledgor waives any right to enforce any remedy under this Agreement, which Bank now has or may hereafter have against Debtor or against any other Loan Document person and waives any benefit of and any right to participate in any Collateral or security whatsoever now or hereafter held by Bank. If any Pledgor is not also a Debtor with respect to a specified indebtedness, such Pledgor authorizes Bank without notice or demand and without affecting Pledgor's liability hereunder, from time to time to: (a) renew, extend, accelerate or otherwise change the time for payment of or otherwise change the terms of the Indebtedness or any other agreement, by any waiver or modification of any provision of any part thereof, any default, failure including increase or delay, willful or otherwise, in the performance of any decrease of the Obligationsrate of interest thereon; (b) take and hold security, or by any other act or omission that may or might in any manner or to any extent vary the risk of the Borrower or that would otherwise operate as a discharge of the Borrower as a matter of law or equity (other than the indefeasible Collateral, for the payment in full in cash of all the Obligations after the termination of the Revolving Credit Commitments).
(b) To Indebtedness or any part thereof, and exchange, enforce, waive and release the fullest extent permitted by Applicable Law, the Borrower waives any defense based on or arising out of the unenforceability of the Obligations Collateral or any part thereof from or any cause, such other than the indefeasible payment in full in cash of all the Obligations security; and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on (c) release or substitute Debtor or any security held by one or more of them by one them, or more judicial any of the endorsers or nonjudicial sales, accept an assignment guarantors of any such security in lieu of foreclosure, compromise the Indebtedness or adjust any part of the Obligationsthereof, or exercise any other right or remedy available to them, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminatedparties thereto.
Appears in 1 contract
Sources: Business Loan Agreement (Chromavision Medical Systems Inc)
Additional Waivers. (a) The obligations To the extent permitted by applicable law, each Pledgor waives presentment, demand, protest, notice of the Borrower shall not be subject to any reductionacceptance, limitation, impairment or termination for any reason (notice of Secured Obligations incurred and all other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the Obligationsmarshaling of assets of such Pledgor, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwiseall suretyship defenses generally. Without limiting the generality of the foregoing, each Pledgor agrees to the obligations provisions of any instrument evidencing, securing or otherwise executed in connection with any of the Borrower hereunder Secured Obligations and agrees that the Secured Obligations shall not be discharged released or impaired discharged, in whole or in part, or otherwise affected by (i) the failure of any Agent or any other Credit the Secured Party to assert any claim or demand or to enforce any right or remedy under this Agreement, against such Pledgor; (ii) any other Loan Document extensions or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance renewals of any of the Secured Obligations; (iii) any rescissions, waivers, amendments or modifications of any of the terms or provisions of any agreement evidencing, securing or otherwise executed in connection with the Secured Obligations; (iv) the substitution or release of any Person primarily or secondarily liable for any obligation of any Pledgor; (v) the adequacy of any rights the Secured Party may have against any collateral or other means of obtaining repayment of the Secured Obligations; (vi) the impairment of any collateral securing the Secured Obligations, including, without limitation, the failure to perfect or by preserve any rights the Secured Party might have in such collateral or the substitution, exchange, surrender, release, loss or destruction of any such collateral; or (vii) any other act or omission that may or which might in any manner or to any extent vary the risk of the Borrower any Pledgor or that would otherwise operate as a release or discharge of the Borrower as a matter such Pledgor, all of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination which may be done without notice to such Pledgor. Each of the Revolving Credit Commitments)Pledgors waives the right to receive any verification statements or financing statements related to this Agreement.
(b) To the fullest extent permitted by Applicable Law, the Borrower waives any defense based on or arising out of the unenforceability of the Obligations or any part thereof from any cause, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, or exercise any other right or remedy available to them, without affecting or impairing in any way the liability of the Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminated.
Appears in 1 contract