CONTRIBUTION PROVISIONS. (a) As a result of the transactions contemplated by this Agreement, each Borrower will benefit, directly and indirectly, from each Borrower’s obligation to pay the Indebtedness and perform the Obligations and in consideration therefore each Borrower agrees among themselves as set forth in this Section 5.38 to allocate such benefits among themselves and to provide a fair and equitable agreement to make contributions among each of Borrowers in the event any payment is made by any individual Borrower hereunder to Agent (such payment being referred to herein as a “Contribution,” and for purposes of this Section 5.38, includes any exercise of recourse by Agent against any Collateral of a Borrower and application of proceeds of such Collateral in satisfaction of such Borrower’s obligations, to Agent under the Loan Documents). (b) Each Borrower shall be liable hereunder with respect to the Obligations only for such total maximum amount (if any) that would not render its Obligations hereunder or under any of the Loan Documents subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any state law. (c) In order to provide for a fair and equitable contribution among Borrowers in the event that any Contribution is made by an individual Borrower (a “Funding Borrower”), such Funding Borrower shall be entitled to a reimbursement Contribution (“Reimbursement Contribution”) from all other Borrowers for all payments, damages and expenses incurred by that Funding Borrower in discharging any of the Obligations, in the manner and to the extent set forth in this Section 5.38. The financial statements provided by Borrowers shall not be required to track this allocation. (d) For purposes hereof, the “Benefit Amount” of any individual Borrower as of any date of determination shall be the net value of the benefits to such Borrower and the other Borrowers from extensions of credit made by Lender to (i) such Borrower and (ii) the other Borrowers hereunder and the Loan Documents to the extent such other Borrowers have mortgaged their property to secure the Obligations of such Borrower to Lender. (e) Each Borrower shall be liable to a Funding Borrower in an amount equal to the greater of (i) the ratio of (A) the Benefit Amount of such Borrower to the total amount of Obligations, multiplied by (B) the amount of Obligations paid by such Funding Borrower, or
Appears in 1 contract
CONTRIBUTION PROVISIONS. (a) As a result of the transactions contemplated by this Agreement, each Borrower will benefit, directly and indirectly, from each Borrower’s obligation to pay the Indebtedness and perform the Obligations and in consideration therefore each Borrower agrees among themselves as set forth in this Section 5.38 to allocate such benefits among themselves and to provide a fair and equitable agreement to make contributions among each of Borrowers in the event any payment is made by any individual Borrower hereunder to Agent (such payment being referred to herein as a “Contribution,” and for purposes of this Section 5.38, includes any exercise of recourse by Agent against any Collateral of a Borrower and application of proceeds of such Collateral in satisfaction of such Borrower’s obligations, to Agent under the Loan Documents).
(b) Each Borrower shall be liable hereunder with respect to the Obligations only for such total maximum amount (if any) that would not render its Obligations hereunder or under any of the Loan Documents subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any state law.
(c) In order to provide for a fair and equitable contribution among Borrowers in the event that any Contribution is made by an individual Borrower (a “Funding Borrower”), such Funding Borrower shall be entitled to a reimbursement Contribution (“Reimbursement Contribution”) from all other Borrowers for all payments, damages and expenses incurred by that Funding Borrower in discharging any of the Obligations, in the manner and to the extent set forth in this Section 5.38. The financial statements provided by Borrowers shall not be required to track this allocation.
(d) For purposes hereof, the “Benefit Amount” of any individual Borrower as of any date of determination shall be the net value of the benefits to such Borrower and the other Borrowers from extensions of credit made by Lender to (i) such Borrower and (ii) the other Borrowers hereunder and the Loan Documents to the extent such other Borrowers have mortgaged their property to secure the Obligations of such Borrower to Lender.
(e) Each Borrower shall be liable to a Funding Borrower in an amount equal to the greater of (i) the ratio of (A) the Benefit Amount of such Borrower to the total amount of Obligations, multiplied by (B) the amount of Obligations paid by such Funding Borrower, oror (ii) ninety-five percent (95%) of the excess of the fair saleable value of the property of such Borrower over the total liabilities of such Borrower (including the maximum amount reasonably expected to become due in respect of contingent liabilities) determined as of the date on which the payment made by a Funding Borrower is deemed made for purposes hereof (giving effect to all payments made by other Funding Borrowers as of such date in a manner to maximize the amount of such Contributions).
(f) In the event that at any time there exists more than one Funding Borrower with respect to any Contribution (in any such case, the “Applicable Contribution”), then Reimbursement Contributions from other Borrowers pursuant hereto shall be allocated among such Funding Borrowers in proportion to the total amount of the Contribution made for or on account of the other Borrowers by each such Funding Borrower pursuant to the Applicable Contribution. In the event that at any time any Borrower pays an amount hereunder in excess of the amount calculated pursuant to this Section 5.38, that Borrower shall be deemed to be a Funding Borrower to the extent of such excess and shall be entitled to a Reimbursement Contribution from the other Borrowers in accordance with the provisions of this Section 5.38.
(g) Each Borrower acknowledges that the right to Reimbursement Contribution hereunder shall constitute an asset in favor of Borrower to which such Reimbursement Contribution is owing.
(h) No Reimbursement Contribution payments payable by a Borrower pursuant to the terms of this Section 5.38 shall be paid until all amounts then due and payable by all of Borrowers to Lenders, pursuant to the terms of the Loan Documents, are paid in full in cash. Nothing contained in this Section 5.38 shall limit or affect in any way the Obligations of any Borrower to Lenders under the Note or any other Loan Documents.
(i) Each Borrower acknowledges and agrees that the obligations and liabilities of each Borrower under this Agreement, the Note and the other Loan Documents shall be joint and several and in connection with such joint and several liability each Borrower hereby waives:
(i) any right to require Agent to proceed against any other Borrower or any other Person or to proceed against or exhaust any security held by Lender at any time or to pursue any other remedy in Agent’s power before proceeding against Borrower;
(ii) any defense based upon any legal disability or other defense of any other Borrower, any Guarantor or any other Person or by reason of the cessation or limitation of the liability of any other Borrower or any guarantor from any cause other than full payment of all sums payable under the Note, this Agreement and any of the other Loan Documents;
(iii) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any other Borrower or any principal of any other Borrower or any defect in the formation of any other Borrower or any principal of any other Borrower;
(iv) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal;
(v) any defense based upon any failure by Agent to obtain collateral for the indebtedness or failure by Agent to perfect a lien on any collateral;
(vi) presentment, demand, protest and notice of any kind (except as otherwise set forth in the Loan Documents);
(vii) any defense based upon any failure of Agent to give notice of sale or other disposition of any collateral to any other Borrower or to any other person or entity or any defect in any notice that may be given in connection with any sale or disposition of any collateral;
(viii) any defense based upon any failure of Agent to comply with applicable laws in connection with the sale or other disposition of any collateral, including any failure of Agent to conduct a commercially reasonable sale or other disposition of any collateral;
(ix) any defense based upon any use of cash collateral under Section 363 of the Bankruptcy Code;
(x) any defense based upon any agreement or stipulation entered into by Agent with respect to the provision of adequate protection in any bankruptcy proceeding;
(xi) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code;
(xii) any defense based upon the avoidance of any security interest in favor of Agent for any reason;
(xiii) any defense based upon any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding, including any discharge of, or bar or stay against collecting, all or any of the obligations evidenced by the Note or owing under any of the Loan Documents;
(xiv) any defense or benefit based upon Borrower’s, or any other Person’s, resignation of the portion of any obligation secured by the Security Instruments to be satisfied by any payment from any other Borrower or any such Person;
(xv) all rights and defenses arising out of an election of remedies by Agent even though the election of remedies, such as nonjudicial foreclosure with respect to security for the Loan or any other amounts owing under the Loan Documents, has destroyed Borrower’s rights of subrogation and reimbursement against any other Borrower;
(xvi) to the extent permitted by law, all rights and defenses that Borrower may have because any of the Indebtedness is secured by real property. This means, among other things:
(1) Agent may collect from any Borrower without first foreclosing on any real or personal property collateral pledged by any other Borrower, (2) if Agent forecloses on any real property collateral pledged by any other Borrower, (I) the amount of the Indebtedness may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, (II) Agent may collect from any Borrower even if any other Borrower, by foreclosing on the real property collateral, has destroyed any right such Borrower may have to collect from any other Borrower. This is an unconditional and irrevocable waiver of any rights and defenses any Borrower may have because any of the Indebtedness is secured by real property; and
(xvii) except as may be expressly and specifically permitted herein, any claim or other right which any Borrower might now have or hereafter acquire against any other Borrower or any other person that arises from the existence or performance of any obligations under the Note, this Agreement, the Security Instruments or the other Loan Documents, including any of the following: (A) any right of subrogation, reimbursement, exoneration, contribution, or indemnification; or (B) any right to participate in any claim or remedy of Agent against any other Borrower or any collateral security therefor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law.
Appears in 1 contract
CONTRIBUTION PROVISIONS. (a) As a result of Each Borrower acknowledges and agrees that because the transactions contemplated by this AgreementObligations are joint and several, each Borrower will benefit, directly has a direct and indirectlymaterial interest in preventing the occurrence of an Event of Default under this Agreement and the other Loan Documents. Accordingly, from each Borrower’s obligation to pay and after the Indebtedness and perform the Obligations and in consideration therefore date hereof, each Borrower agrees among themselves as set forth is willing to commit to make or receive loans (each an “Intra-Borrower Loan”, and collectively, the “Intra-Borrower Loans”) in this Section 5.38 to allocate such benefits among themselves and order to provide a fair for the payment of all amounts due under the Loan Documents and, in so doing, to avoid an Event of Default thereunder. Each Borrower acknowledges and equitable agreement to make contributions among each agrees that Lender is an intended third party beneficiary of Borrowers Borrowers’ obligations hereunder. A Borrower that makes payment in excess of its Allocated Loan Amount, or in the event case of interest payments, in excess of the interest accrued on its Allocated Loan Amount, or whose Property is applied to any payment is made by any individual Borrower hereunder to Agent (such payment being referred to herein as a “Contribution,” and for purposes of this Section 5.38, includes any exercise of recourse by Agent against any Collateral of a Borrower and application of proceeds of such Collateral the Loan in satisfaction excess of such Borrower’s obligationsAllocated Loan Amount is referred to in this Agreement as the “Creditor” and any Borrower that does not timely pay its Allocated Loan Amount and interest thereon is referred to in this Article 11 as the “Debtor.” A Creditor shall be deemed to have made an Intra-Borrower Loan to the Debtor in the amount by which the payments by the Creditor or application of its property exceeds the Creditor’s Allocated Loan Amount, or in the case of interest payments, in excess of the interest accrued on its Allocated Loan Amount (the “Intra-Borrower Loan Amount”). Such Intra-Borrower Loan shall not be secured, and will bear interest at the rate of interest in effect from time to Agent time under the Loan. Accrued but unpaid interest shall not be compounded. Each Intra-Borrower Loan Documents)is a recourse obligation only of the Debtor who owes such Intra-Borrower Loan. Intra-Borrower Loans may be prepaid at any time without penalty or premium.
(b) Each Borrower A Debtor shall be liable hereunder not make any payment with respect to an Intra-Borrower Loan so long as there is an uncured Default or Event of Default under this Agreement. Each such payment of principal or interest on Intra-Borrower Loans shall be subordinate and subject to the Obligations only prior payment of all amounts then currently payable under the Loan Documents. To the extent such sources of payment are insufficient to pay interest and principal on any Intra-Borrower Loan, the Creditor owed such Intra-Borrower Loan shall not have any claim against the Debtor which owes such Intra-Borrower Loan for such total maximum amount (if any) that would not render its Obligations hereunder amounts or under any lien on or security interest in any of the Loan Documents subject assets of such Debtor and no further or additional recourse shall be available against the Debtor. All payments pursuant to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions Intra-Borrower Loans shall be made on a net basis. All payments received on account of any state lawIntra-Borrower Loan under this Agreement shall be credited first to interest, then to principal. Accrued but unpaid interest shall not be compounded.
(c) In order to provide for a fair Intra-Borrower Loans are deemed made solely by the execution of this Agreement and equitable contribution among Borrowers in the event that any Contribution is made by an individual Borrower (a “Funding Borrower”), such Funding Borrower shall be entitled to a reimbursement Contribution (“Reimbursement Contribution”) from all other Borrowers for all payments, damages and expenses incurred by that Funding Borrower in discharging any of the Obligations, in the manner and to the extent set forth in this Section 5.38. The financial statements provided by Borrowers shall not be required to track this allocation.
(d) For purposes hereof, the “Benefit Amount” of evidenced by any individual Borrower as of any date of determination shall be the net value of the benefits to such Borrower and the other Borrowers from extensions of credit made by Lender to (i) such Borrower and (ii) the other Borrowers hereunder and the Loan Documents to the extent such other Borrowers have mortgaged their property to secure the Obligations of such Borrower to Lender.
(e) separate instrument. Each Borrower shall be hereby waives presentment, notice of dishonor, protest and notice of non-payment or non-performance with respect to each Intra-Borrower Loan for which it is liable to a Funding Borrower in an amount equal to the greater of (i) the ratio of (A) the Benefit Amount of such Borrower to the total amount of Obligations, multiplied by (B) the amount of Obligations paid by such Funding Borrower, oras Debtor under this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Emeritus Corp\wa\)
CONTRIBUTION PROVISIONS. (a) As a result Each of the transactions contemplated by this AgreementSubsidiaries acknowledges and agrees that because the Obligations are joint and several, each Borrower will benefit, directly of the Borrowers has a direct and indirectlymaterial interest in preventing the occurrence of an Event of Default under this Agreement and the other Loan Documents. Accordingly, from and after the date hereof, each Borrower’s obligation of the Subsidiaries is willing to pay commit to make or receive loans (each an “Intra-Borrower Loan”, and collectively, the Indebtedness and perform the Obligations and “Intra-Borrower Loans”) in consideration therefore each Borrower agrees among themselves as set forth in this Section 5.38 to allocate such benefits among themselves and order to provide a fair for the payment of all amounts due under the Loan Documents and, in so doing, to avoid an Event of Default thereunder. Each Borrower acknowledges and equitable agreement to make contributions among each agrees that Lenders is an intended third party beneficiary of Borrowers the Borrowers’ obligations hereunder. A Borrower that makes payment in excess of its Allocated Loan Amount, or in the event case of interest payments, in excess of the interest accrued on its Allocated Loan Amount, or whose Property is applied to any payment is made by any individual Borrower hereunder to Agent (such payment being referred to herein as a “Contribution,” and for purposes of this Section 5.38, includes any exercise of recourse by Agent against any Collateral of a Borrower and application of proceeds of such Collateral the Loan in satisfaction excess of such Borrower’s obligationsAllocated Loan Amount is referred to in this Agreement as the “Creditor” and any Borrower that does not timely pay its Allocated Loan Amount and interest thereon is referred to in this Article 10 as the “Debtor.” A Creditor shall be deemed to have made an Intra-Borrower Loan to the Debtor in the amount by which the payments by the Creditor or application of its property exceeds the Creditor’s Allocated Loan Amount, or in the case of interest payments, in excess of the interest accrued on its Allocated Loan Amount (the “Intra-Borrower Loan Amount”). Such Intra-Borrower Loan shall not be secured, and will bear interest at the rate of interest in effect from time to Agent time under the Loan. Accrued but unpaid interest shall not be compounded. Each Intra-Borrower Loan Documents)is a recourse obligation only of the Debtor who owes such Intra-Borrower Loan. Intra-Borrower Loans may be prepaid at any time without penalty or premium.
(b) Each Borrower A Debtor shall be liable hereunder not make any payment with respect to an Intra-Borrower Loan so long as there is an uncured Default or Event of Default under this Agreement. Each such payment of principal or interest on Intra-Borrower Loans shall be subordinate and subject to the Obligations only prior payment of all amounts then currently payable under the Loan Documents. To the extent such sources of payment are insufficient to pay interest and principal on any Intra-Borrower Loan, the Creditor owed such Intra-Borrower Loan shall not have any claim against the Debtor which owes such Intra-Borrower Loan for such total maximum amount (if any) that would not render its Obligations hereunder amounts or under any lien on or security interest in any of the Loan Documents subject assets of such Debtor and no further or additional recourse shall be available against the Debtor. All payments pursuant to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions Intra-Borrower Loans shall be made on a net basis. All payments received on account of any state law.
(c) In order to provide for a fair and equitable contribution among Borrowers in the event that any Contribution is made by an individual Intra-Borrower (a “Funding Borrower”), such Funding Borrower Loan under this Agreement shall be entitled credited first to a reimbursement Contribution (“Reimbursement Contribution”) from all other Borrowers for all paymentsinterest, damages and expenses incurred by that Funding Borrower in discharging any of the Obligations, in the manner and then to the extent set forth in this Section 5.38principal. The financial statements provided by Borrowers Accrued but unpaid interest shall not be required to track this allocationcompounded.
(d) For purposes hereof, the “Benefit Amount” of any individual Borrower as of any date of determination shall be the net value of the benefits to such Borrower and the other Borrowers from extensions of credit made by Lender to (i) such Borrower and (ii) the other Borrowers hereunder and the Loan Documents to the extent such other Borrowers have mortgaged their property to secure the Obligations of such Borrower to Lender.
(e) Each Borrower shall be liable to a Funding Borrower in an amount equal to the greater of (i) the ratio of (A) the Benefit Amount of such Borrower to the total amount of Obligations, multiplied by (B) the amount of Obligations paid by such Funding Borrower, or
Appears in 1 contract
Sources: Loan Agreement (Grubb & Ellis Healthcare REIT II, Inc.)