Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation. (a) Each Individual Borrower waives presentment to, demand of payment from and protest to any Individual Borrower of any of the Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Individual Borrower hereunder shall not be affected by (a) the failure of Lender to assert any claim or demand or to enforce any right or remedy against any Individual Borrower under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation. (b) Each Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender in favor of any Individual Borrower or any other Person. (c) The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise. (d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of any Individual Borrower or otherwise. (e) In furtherance of the foregoing and not in limitation of any other right which Lender may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon. (f) Each Individual Borrower (i) agrees that it shall have no right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations or any other person; and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender. (g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assets. (h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
Appears in 3 contracts
Sources: Loan Agreement (Hospitality Investors Trust, Inc.), Loan Agreement (Hospitality Investors Trust, Inc.), Loan Agreement (Hospitality Investors Trust, Inc.)
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) Each Individual Borrower waives presentment to, demand of payment from and protest to any Individual Borrower of any of the Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Individual Borrower hereunder shall not be affected by (a) the failure of Lender to assert any claim or demand or to enforce any right or remedy against any Individual Borrower under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) Each Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender in favor of any Individual Borrower or any other Person.
(c) The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of any Individual Borrower or otherwise.
(e) In furtherance of the foregoing and not in limitation of any other right which Lender may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations or any other person; and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assets.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
Appears in 2 contracts
Sources: Loan Agreement (W2007 Grace Acquisition I Inc), Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) Each Individual Borrower waives presentment to, demand of payment from Notwithstanding that the Loan Parties are jointly and protest to any Individual Borrower of any of the severally liable for all Obligations, if for any reason the Loan Parties are found in a final, non-appealable order not to be jointly and also waives notice of acceptance of its obligations and notice of protest severally liable for nonpayment. The obligations of each Individual Borrower hereunder shall not be affected by (a) the failure of Lender to assert any claim or demand or to enforce any right or remedy against any Individual Borrower under the all Obligations, then provisions of this AgreementSection apply and each Loan Party absolutely and unconditionally guarantees to Lender and its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration, or otherwise) and performance of all Obligations (excluding Excluded Hedging Obligations). Each Loan Party’s Guaranty obligation is in addition to all other Guaranty obligations and is a payment and performance Guaranty, and its obligations under this Section are absolute and unconditional, irrespective of, and not affected by:
(1) The genuineness, validity, regularity, enforceability or any future amendment of, or change in, any other Loan Document or otherwise; any other agreement, document, or instrument to which the other Loan Parties are or may become a party.
(2) Lender not enforcing the Loan Documents (including this Section).
(3) The existence, value, or condition of any Collateral, Lender not perfecting its Lien on any Collateral, Lender releasing any Collateral, or any Person liable for the Obligations.
(4) Any other action or circumstances that could be a legal or equitable defense of a surety or guarantor.
(b) Lender does not have to proceed against any extension other Person (including any other Loan Party) or renewal any Collateral before requiring payment by any one or more of the Loan Parties. Lender may proceed, before, after, or at the same time to enforce its rights under this Section and against any Collateral.
(c) Each Loan Party waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Each Loan Party waives with respect to its obligations and with respect to any of the Obligations; : (c1) any rescissionall defenses with respect to diligence, waiverpresentment, amendment demand, maturity, extension of time, change in nature or modification form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or release from, any of the terms or provisions of this Agreementof, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e2) the failure notice of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any adverse change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or Loan Parties’ financial condition; and (3) any other guarantor fact that might increase the risk to that Loan Party. Each Loan Party also waives the benefit of all provisions of law that are or might be in conflict with the terms of this Section. Each Loan Party represents, warrants, and agrees that its obligations under this Section are not and will not be subject to any of the Obligations; (g) the enforceability setoffs, defenses, or validity of counterclaims. Each Loan Party’s obligations under this Section remain in full force and effect until the Obligations or any part thereof or have been irrevocably paid and performed in full and the genuineness, enforceability or validity of any agreement relating thereto or Loan Documents have been terminated (other than contingent obligations with respect to any collateral securing which no claim has been asserted or threatened). Each Loan Party is in the same position as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that Lender proceed against any other Loan Party or any part thereofCollateral before proceeding against, or any other invalidity as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section (including the waivers), Lender would not enter into the Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, in any other Loan Document, until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or any provision of applicable lawthreatened), decreeeach Loan Party:
(1) Subordinates and defers all rights at law or in equity to subrogation, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower reimbursement, exoneration, contribution, indemnification, setoff, or any other guarantor rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the Obligations, of Loan Documents or any of other agreements.
(2) Irrevocably subordinates and defers any “claim” (as defined in the Obligations or otherwise affecting Bankruptcy Code) against any term of Person (including the other Loan Parties and any surety for any of the Obligations; ), either directly or (h) any other act, omission or delay to do any other act which may or might in any manner or as an attempted set off to any extent vary action instituted by Lender against any Person (including the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogationother Loan Parties).
(b3) Each Individual Borrower further Acknowledges and agrees (x) that this subordination and deferral is intended to benefit Lender and does not limit or otherwise affect that Loan Party’s liability or the enforceability of this Section and (y) that Lender and its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any respective successors and assigns are intended third-party beneficiaries of the Obligations or operated as a discharge thereof) waivers and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender agreements set forth in favor of any Individual Borrower or any other Person.
(c) The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of any Individual Borrower or otherwisethis Section.
(e) In furtherance If Lender enforces its rights with respect to any Collateral (either by judicial foreclosure or by non-judicial sale or enforcement), Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights, remedies, and benefits under this Section. If, in the exercise of any of its rights and remedies, Lender forfeits any of its rights or remedies, including its right to enter a deficiency judgment against any Loan Party or any other Person, whether because of any applicable laws relating to “election of remedies” or similar laws, the Loan Parties consent to that action by ▇▇▇▇▇▇ and waive any claim based on that action, even if the action by Lender results in a full or partial loss of any subrogation or other rights that a Loan Party might otherwise have had but for Lender’s action. Any election of remedies that results in the denial or impairment of ▇▇▇▇▇▇’s right to seek a deficiency judgment against a Loan Party does not impair the other Loan Parties’ obligation to pay the full amount of the foregoing Obligations. If Lender bids at any foreclosure sale, trustee sale, or at any private sale, Lender may bid all or less than the amount of the Obligations and the amount of Lender’s bid need not in limitation be paid by ▇▇▇▇▇▇ but will instead be credited against the Obligations. The amount of the successful bid at any such sale, whether by Lender or any other right which Lender bidder, is conclusively treated as the fair market value of the Collateral (and the difference between that bid amount and the remaining balance of the Obligations is conclusively treated as the amount of the Obligations guaranteed under this Section, notwithstanding that any law, court decision, or ruling may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure effect of any other Borrower to pay any Obligation when and as reducing the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereonthe deficiency claim but for bidding at any sale).
(f) Each Individual Borrower (i) agrees The Guaranty in this Section is a continuing Guaranty that it shall have no right of subrogation with respect to remains in full force and effect until the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations or any other person; Obligations are irrevocably paid and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lenderperformed in full.
(g) Each Individual Borrower agrees that Loan Party’s liability under this Section is limited to an amount not to exceed on any and determination date the greater of (1) or (2):
(1) The net amount of all claims that it may have against any of Loans to the other Individual BorrowersLoan Parties under this Agreement and then re-loaned or otherwise transferred to or directly benefiting the subject Loan Party.
(2) The Loan Party’s Allocable Amount, any endorser or any after taking into account, among other guarantor of all or any part of the obligations of the other Individual Borrowersthings, or against any of their respective properties, shall be subordinate and subject in that Loan Party’s right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment contribution and indemnification from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assetsLoan Parties under Section 14.4.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
Appears in 2 contracts
Sources: Credit and Security Agreement (1847 Holdings LLC), Credit and Security Agreement (1847 Holdings LLC)
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) Each Individual Borrower waives presentment to, demand of payment from Notwithstanding that Borrowers are jointly and protest to any Individual Borrower of any of the severally liable for all Obligations, if for any reason the Borrowers are found in a final, non-appealable order not to be jointly and also waives notice severally liable for all Obligations, then provisions of acceptance this Section 12.10 apply and Borrower absolutely and unconditionally guarantees to Lender, the full and prompt payment (whether at stated maturity, by acceleration, or otherwise) and performance of all Obligations. Borrower’s guaranty obligation is in addition to all other guaranty obligations and is a payment and performance guaranty (and not a collection guaranty), and its obligations under this Section 12.10 are absolute and notice of protest for nonpayment. The obligations of each Individual Borrower hereunder shall unconditional, irrespective of, and not be affected by (ai) the failure of Lender to assert genuineness, validity, regularity, enforceability or any claim future amendment of, or demand or to enforce any right or remedy against any Individual Borrower under the provisions of this Agreementchange in, any other Loan Document or otherwiseany other document to which the other Loan Parties are or may become a party; (ii) Lender not enforcing the Loan Documents; (iii) the existence, value, release, or condition of any Collateral, or Lender releasing any Person liable for the Obligations; or (iv) any other action or circumstances that could be a legal or equitable defense of a surety or guarantor.
(b) Lender does not have to proceed against any extension other Person (including any other Loan Party) or renewal any Collateral before requiring payment by any one or more of the Loan Parties.
(c) B▇▇▇▇▇▇▇ waives and agrees that it may not at any time insist on, plead, or claim, or take the benefit or advantage of any laws, claims, or doctrines related to appraisal, valuation, stay, extension, marshaling, redemption, or exemption. Borrower waives with respect to any of the Obligations; : (c1) any rescissionall defenses with respect to diligence, waiverpresentment, amendment demand, maturity, extension of time, change in nature or modification form of the Obligations, acceptance, release of security, composition, or agreement arrived at as to the amount of, or release from, any of the terms or provisions of this Agreementof, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e2) the failure notice of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any adverse change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or Loan Parties’ financial condition; and (3) any other guarantor fact that might increase the risk to that Loan Party. B▇▇▇▇▇▇▇ also waives the benefit of all provisions of law that are or might be in conflict with the terms of this Section 12.10. Borrower represents, warrants, and agrees that its obligations under this Section 12.10 are not and will not be subject to any of the Obligations; (g) the enforceability setoffs, defenses, or validity of counterclaims. Borrower’s obligations under this Section 12.10 remain in full force and effect until the Obligations or any part thereof or have been irrevocably paid and performed in full and the genuineness, enforceability or validity of any agreement relating thereto or Loan Documents have been terminated (other than contingent obligations with respect to any collateral securing which no claim has been asserted or threatened). Borrower is in the same position as a principal debtor with respect to the Obligations and expressly waives all rights it has and may have to require that Lender proceed against any other Loan Party or any part thereofCollateral before proceeding against, or any other invalidity as a condition to proceeding against, that Loan Party. The parties acknowledge that, but for the provisions of this Section 12.10 (including the waivers), L▇▇▇▇▇ would not enter into the Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, in any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of until the Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or otherwise affecting any term of any of the Obligations; or threatened), Borrower (hi) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) Each Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) irrevocably subordinates and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender in favor of any Individual Borrower or any other Person.
(c) The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of any Individual Borrower or otherwise.
(e) In furtherance of the foregoing and not in limitation of any other right which Lender may have defers all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification, setoff, or any other rights that a surety could have against a principal, a guarantor, a maker, a co-maker, an obligor, an accommodation party, a holder, a transferee, and that a Loan Party may have against any Individual Borrower by virtue hereof, upon Person (including another Loan Party) in connection with or as a result of a Loan Party performing its obligations under the failure of Loan Documents or any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no right of subrogation with respect to the obligations of the other Individual Borrowersagreements; (ii) waives irrevocably subordinates and defers any right to enforce “claim” (as defined in the Bankruptcy Code) against any remedy that Lender now has or may hereafter have against Person (including the other Loan Parties and any surety for any of the Obligations), either directly or as an attempted set off to any action instituted by Lender against any Person (including the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations or any other personLoan Parties); and (iii) waives any acknowledges and agrees (x) that this subordination and deferral is intended to benefit of, Lender and any right to participate in, any security does not limit or collateral given to otherwise affect that Loan Party’s liability or the enforceability of this Section 12.10 and (y) that Lender to secure the payment or performance of all or any part of such obligations or any other liability and its respective successors and assigns are intended third-party beneficiaries of the other parties to Lender.
(g) Each Individual Borrower agrees that any waivers and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assets.
(h) Other than as expressly agreements set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligationsthis Section 12.10.
Appears in 2 contracts
Sources: Credit and Security Agreement (Enservco Corp), Credit and Security Agreement (Cemtrex Inc)
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and Each Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that Guarantor, (a) the due and punctual payment of such (i) the principal of and premium, if any, and interest on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations (other than those referred to in the preceding clause (i)) of the Borrowers under the Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Loan Documents (collectively, the "Obligations"). Each Guarantor further agrees that the Obligations may be extended or and renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) . Each Individual Borrower Guarantor waives presentment to, demand of of, payment from and protest to any Individual Borrower the Borrowers of any of the Obligations, and also waives notice of acceptance of its obligations guarantee and notice of protest for nonpayment. The obligations of each Individual Borrower a Guarantor hereunder shall not be affected by (a) the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against any Individual Borrower the Borrowers or the other Guarantor under the provisions of this Agreement, Agreement or any of the other Loan Document Documents or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, of any of the terms or provisions of this Agreement, any of the other Loan Documents, any guarantee or any other Loan Document or agreement; or (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (ec) the failure of any Lender take to exercise any steps to perfect and maintain any security interest in, right or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or remedy against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) . Each Individual Borrower Guarantor further agrees that its agreement hereunder guarantee constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by any Lender to any balance of any deposit account or credit on the books of any Lender in favor of or any Individual Borrower or any other Person.
(c) person. The obligations of each Individual Borrower Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, compromise, and shall not be subject to any defense or set-offsetoff, counterclaim, recoupment or termination whatsoever, whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement or under any other Loan Document, any guarantee or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the Obligations, or by any impossibility other act or omission which may or might in any manner or to any extent vary the performance risk of any such Guarantor or otherwise operate as a discharge of the Obligations such Guarantor as a matter of law or otherwise.
(d) equity. Each Individual Borrower Guarantor further agrees that its obligations hereunder guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the bankruptcy or reorganization of any Individual Borrower of the Borrowers or otherwise.
(e) . In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against any Individual Borrower Guarantor by virtue hereof, upon the failure of any other a Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower Guarantor hereby promises to and will, upon receipt of written demand by Lenderthe Administrative Agent, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such unpaid Obligations, and thereupon each Lender shall, in a reasonable manner, assign the amount of the Obligations then dueowed to it and paid by such Guarantor pursuant to this guarantee to such Guarantor, together with accrued such assignment to be pro tanto to the extent to which the Obligations in question were discharged by such Guarantor, or make such disposition thereof as such Guarantor shall direct (all without recourse to any Lender and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no without any representation or warranty by any Lender). Upon payment by a Guarantor of any sums as provided above, all rights of such Guarantor against a Borrower, as the case may be, arising as a result thereof by way of right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of otherwise shall in all or any part of such obligations or any other person; respects be subordinated and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject junior in right of payment to the prior indefeasible payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated Obligations to the rights of Lender in those assetsLenders.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Popular Inc), 364 Day Credit Agreement (Popular Inc)
Cross-Guaranty. In order (a) Each Borrower (each to induce Lender be referred to extend credit to in this Section 2.14 as a “Cross-Guarantor” and collectively as the Individual Borrowers comprising Borrower hereunder“Cross-Guarantors”) hereby agrees that it is jointly and severally liable for, each Individual Borrower hereby irrevocably and unconditionally guaranteesand, as a primary obligor and not merely as a surety, and therefore does absolutely and unconditionally guarantee to Bank, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and as due at all times thereafter, of the Obligations of each other Borrower (such other Individual BorrowersObligations, collectively the “Cross-Guaranteed Obligations”). Each Individual Borrower Cross-Guarantor further agrees that the due and punctual payment of such Cross-Guaranteed Obligations may be extended or renewed, renewed in whole or in part, part without notice to or further assent from it, and that it will remain remains bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligationrenewal.
(ab) Each Individual Borrower waives presentment to, demand The provisions of this Section 2.14 (this “Cross-Guaranty”) is a guaranty of payment from and protest not of collection. Each Cross-Guarantor waives any right to require Bank to ▇▇▇ any Borrower, any Cross-Guarantor, any other guarantor, or any other Person obligated for all or any part of the Cross-Guaranteed Obligations, or otherwise to enforce its payment against any collateral securing all or any part of the Cross-Guaranteed Obligations.
(c) Except as otherwise provided for herein and to the extent provided for herein, the obligations of each Cross-Guarantor hereunder are unconditional and absolute and not subject to any Individual Borrower reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Cross-Guaranteed Obligations), including:
(i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the Cross-Guaranteed Obligations, and also waives notice by operation of acceptance law or otherwise;
(ii) any change in the corporate existence, structure or ownership of its obligations and notice any Borrower, any other Cross-Guarantor of protest or other Person liable for nonpayment. any of the Cross-Guaranteed Obligations;
(iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Borrower, any Cross-Guarantor, or any other guarantor of or other Person liable for any of the Cross-Guaranteed Obligations, or their assets or any resulting release or discharge of any obligation of any Borrower, any Cross-Guarantor, or any other guarantor of or other Person liable for any of the Cross-Guaranteed Obligations; or
(iv) the existence of any claim, setoff or other rights which any Cross-Guarantor may have at any time against any Borrower, any Cross-Guarantor, any other guarantor of the Cross-Guaranteed Obligations, Bank, or any other Person, whether in connection herewith or in any unrelated transactions.
(d) The obligations of each Individual Borrower Cross-Guarantor hereunder shall are 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 Cross-Guaranteed Obligations or otherwise, or any provision of applicable law or regulation purporting to prohibit payment by any Borrower, any Cross-Guarantor or any other guarantor of or other Person liable for any of the Cross-Guaranteed Obligations, of the Cross-Guaranteed Obligations or any part thereof.
(e) Further, the obligations of any Cross-Guarantor hereunder are not discharged or impaired or otherwise affected by by:
(ai) the failure of Lender Bank to assert any claim or demand or to enforce any right remedy with respect to all or remedy against any Individual Borrower under part of the provisions Cross-Guaranteed Obligations;
(ii) any waiver or modification of this Agreementor supplement to any provision of any agreement relating to the Cross-Guaranteed Obligations;
(iii) any release, non-perfection, or invalidity of any indirect or direct security for the obligations of Borrowers (or any one or more of them) for all or any part of the Cross-Guaranteed Obligations or any obligations of any other Loan Document guarantor of or otherwise; (b) any extension or renewal of other Person liable for any of the Cross-Guaranteed Obligations;
(iv) any action or failure to act by Bank with respect to any collateral securing any part of the Cross-Guaranteed Obligations; or
(c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (dv) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Cross-Guaranteed Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Obligationscircumstance, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or that might in any manner or to any extent vary the risk of such Individual Borrower Cross-Guarantor or that would otherwise operate as a discharge of a guarantor any Cross-Guarantor as a matter of law or equity or which would impair or eliminate any right (other than the indefeasible payment in full in cash of such Individual Borrower to subrogationthe Cross-Guaranteed Obligations).
(bf) Each Individual To the fullest extent permitted by applicable law, each Cross-Guarantor hereby waives any defense based on or arising out of any defense of any Borrower further agrees or any Cross-Guarantor or the unenforceability of all or any part of the Cross-Guaranteed Obligations from any cause, or the cessation from any cause of the liability of any Borrower or any Cross-Guarantor, other than the indefeasible payment in full in cash of the Cross-Guaranteed Obligations. Without limiting the generality of the foregoing, each Cross-Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not provided for herein, as well as any requirement that its agreement hereunder constitutes a guarantee of payment when due (whether or not at any bankruptcy or similar proceeding shall have stayed the accrual or collection time any action be taken by any Person against any Borrower, any Cross-Guarantor, any other guarantor of any of the Obligations or operated as a discharge thereof) and not merely of collectionCross-Guaranteed Obligations, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender in favor of any Individual Borrower or any other Person.
(c) The obligations . Bank may, at its election, foreclose on any Loan Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of each Individual Borrower hereunder shall not be subject any such Loan Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any reduction, limitation, impairment collateral securing all or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason a part of the invalidityCross-Guaranteed Obligations, illegality compromise or unenforceability adjust any part of the Cross-Guaranteed Obligations, make any other accommodation with any Borrower, any Cross-Guarantor, any other guarantor or any other Person liable on any part of the Cross-Guaranteed Obligations or exercise any other right or remedy available to it against any Borrower, any Cross-Guarantor, any other guarantor or any other Person liable on any of the Cross-Guaranteed Obligations, without affecting or impairing in any impossibility way the liability of such Cross-Guarantor under this Cross-Guaranty except to the extent the Cross-Guaranteed Obligations have been fully and indefeasibly paid in cash. To the performance fullest extent permitted by applicable law, each Cross-Guarantor waives any defense arising out of any such election even though that election may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Cross-Guarantor against any Borrower, any other guarantor or any other Person liable on any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstatedCross-Guaranteed Obligations, as the case may be, if or any security.
(g) No Cross-Guarantor will assert any right, claim or cause of action, including a claim of subrogation, contribution or indemnification that it has against any Borrower, any Cross-Guarantor, any Person liable on the Cross-Guaranteed Obligations, or any collateral, until Borrowers and the Cross-Guarantors have fully performed all their obligations to Bank.
(h) If at any time payment, or any part thereof, payment of any Obligation portion of the Cross-Guaranteed Obligations is rescinded or must otherwise be restored by Lender or returned upon the insolvency, bankruptcy, or reorganization of any Borrower or otherwise, each Cross-Guarantor’s obligations under this Cross-Guaranty with respect to that payment shall be reinstated at such time as though the payment had not been made and whether or not Bank is in possession of this Cross-Guaranty. Except as provided in the preceding sentence, each Cross-Guarantor’s obligations under this Cross-Guaranty will terminate when the Cross-Guaranteed Obligations have been fully paid, performed and satisfied and the Loan Documents are terminated. If acceleration of the time for payment of any of the Cross-Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Individual Borrower or otherwiseBorrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Cross-Guaranteed Obligations shall nonetheless be payable by the Cross-Guarantors forthwith on demand by Bank.
(ei) In furtherance Each Cross-Guarantor assumes all responsibility for being and keeping itself informed of each other Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the foregoing Cross-Guaranteed Obligations and the nature, scope and extent of the risks that each Cross-Guarantor assumes and incurs under this Cross-Guaranty, and agrees that Bank shall not in limitation have any duty to advise any Cross-Guarantor of information known to it regarding those circumstances or risks.
(j) Bank may continue to make loans or extend credit to Borrowers based on this Cross-Guaranty until the termination of this Cross-Guaranty pursuant to Section 2.14(h).
(k) All payments of the Cross-Guaranteed Obligations will be made by each Cross-Guarantor free and clear of and without deduction for or on account of any other right and all present or future taxes, levies, imposts, duties, charges, deductions or withholdings of whatever nature imposed by any governmental authority with respect to such payments, and any and all liabilities with respect to the foregoing, but excluding franchise taxes and taxes imposed on overall net income of Bank by the U.S. or the jurisdiction in which Lender may have at Bank’s applicable lending installation is located (collectively, “Taxes”). If any Cross-Guarantor is required by law to deduct any Taxes from or in equity against any Individual Borrower by virtue hereof, upon the failure respect of any other Borrower sum payable to pay any Obligation when and Bank under this Cross-Guaranty, (i) the sum payable must be increased as the same shall become due, whether at maturity, by acceleration, necessary so that after notice of prepayment or otherwise, each Individual Borrower hereby promises making all required deductions (including deductions applicable to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash additional sums payable under this provision) Bank receives an amount equal to the unpaid principal sum it would have received had no such deductions been made, (ii) the Cross-Guarantors must then make such deductions, and must pay the full amount deducted to the relevant authority in accordance with applicable law, and (iii) the Cross-Guarantors must furnish to Bank within forty-five days after their due date certified copies of all official receipts evidencing payment thereof.
(l) The provisions of this Cross-Guaranty are severable, and in any action or proceeding involving any state corporate law, or any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Cross-Guarantor under this Cross-Guaranty would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Obligations then dueCross-Guarantor’s liability under this Cross-Guaranty, together with accrued then, notwithstanding any other provision of this Cross-Guaranty to the contrary, the amount of such liability shall, without any further action by the Cross-Guarantors or Bank, be automatically limited and unpaid interest thereon.
reduced to the highest amount that is valid and enforceable as determined in such action or proceeding (f) Each Individual Borrower (i) agrees that it shall have no right of subrogation such highest amount determined hereunder being the relevant Cross-Guarantor’s “Maximum Liability”). This Section with respect to the Maximum Liability of each Cross-Guarantor is intended solely to preserve the rights of Bank to the maximum extent not subject to avoidance under applicable law, and no Cross-Guarantor nor any other Person or entity shall have any right or claim under this Section with respect to such Maximum Liability, except to the extent necessary so that the obligations of any Cross-Guarantor hereunder shall not be rendered voidable under applicable law. Each Cross-Guarantor agrees that the Cross-Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of each Cross-Guarantor without impairing this Cross-Guaranty or affecting the rights and remedies of Bank hereunder, provided that, nothing in this sentence shall be construed to increase any Cross-Guarantor’s obligations hereunder beyond its Maximum Liability.
(m) In the event any Cross-Guarantor (a “Paying Cross-Guarantor”) shall make any payment or payments under this Cross-Guaranty or shall suffer any loss as a result of any realization upon any collateral granted by it to secure its obligations under this Cross-Guaranty, each other Individual Borrowers; Cross-Guarantor (each a “Non-Paying Cross-Guarantor”) shall contribute to such Paying Cross-Guarantor an amount equal to such Non-Paying Cross-Guarantor’s “Pro Rata Share” of such payment or payments made, or losses suffered, by such Paying Cross-Guarantor. For purposes of this Section 2.14, each Non-Paying Cross-Guarantor’s “Pro Rata Share” with respect to any such payment or loss by a Paying Cross-Guarantor shall be determined as of the date on which such payment or loss was made by reference to the ratio of (i) such Non-Paying Cross-Guarantor’s Maximum Liability as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder) or, if such Non-Paying Cross-Guarantor’s Maximum Liability has not been determined, the aggregate amount of all monies received by such Non-Paying Cross-Guarantor from a Borrower after the date hereof (whether by loan, capital infusion or by other means) to (ii) waives the aggregate Maximum Liability of all Cross-Guarantors hereunder (including such Paying Cross-Guarantor) as of such date (without giving effect to any right to enforce receive, or obligation to make, any remedy contribution hereunder), or to the extent that Lender now a Maximum Liability has not been determined for any Cross-Guarantor, the aggregate amount of all monies received by such Cross-Guarantors from a Borrower after the date hereof (whether by loan, capital infusion or may hereafter have against by other means). Nothing in this provision shall affect any Cross-Guarantor’s several liability for the entire amount of the other Individual Borrowers any endorser or any guarantor Cross-Guaranteed Obligations (up to such Cross-Guarantor’s Maximum Liability). Each of all or any part of such obligations or any other person; the Cross-Guarantors covenants and (iii) waives any benefit of, and any agrees that its right to participate in, receive any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, contribution under this Cross-Guaranty from a Non-Paying Cross-Guarantor shall be subordinate and subject junior in right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any cash of the other Individual Borrowers (whether constituting part Cross-Guaranteed Obligations. This provision is for the benefit of both Bank and the security Cross-Guarantors and may be enforced by any one, or collateral given to Lender to secure payment more, or all of all or any part of them in accordance with the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assetsterms hereof.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
Appears in 2 contracts
Sources: Financing Agreement (EQM Technologies & Energy, Inc.), Financing Agreement (EQM Technologies & Energy, Inc.)
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) Each Individual Non-[*****] Borrower waives presentment tohas entered into the Guaranty Agreement to guarantee to the Credit Parties the payment in full of all of the Obligations owed by each of the other Borrowers and the due performance by each of the other Borrowers of its respective duties and covenants made in favor of the Credit Parties in this Agreement and in the other Credit Documents, demand all on the terms and conditions set forth in the Guaranty Agreement. Each Non-[*****] Borrower agrees that neither its Guarantee under the Guaranty Agreement nor the Credit Parties’ liens and rights in any of payment from and protest the Collateral shall be impaired or affected by any modification, supplement, extension or amendment of any contract or agreement to which the parties hereto may hereafter agree, nor by any modification, release or other alteration of any of the rights of the Credit Parties with respect to any Individual Borrower of the Collateral, nor by any delay, extension of time, renewal, compromise or other indulgence granted by the Administrative Agent or the Lenders with respect to any of the Obligations, and also waives nor by any other agreements or arrangements whatever with the other Borrowers or with any other Person, each Non-[*****] Borrower hereby waiving all notice of acceptance of its obligations any such delay, extension, release, substitution, renewal, compromise or other indulgence, and notice of protest for nonpaymenthereby consenting to be bound thereby as fully and effectively as if it had expressly agreed thereto in advance. The obligations Except as may be expressly stated in this Agreement to the contrary, the liability of each Individual Non-[*****] Borrower hereunder shall not is direct and unconditional as to all of the Obligations and may be affected by (a) enforced without requiring the failure of Lender Credit Parties first to assert any claim or demand or resort to enforce any right or remedy against any Individual Borrower under the provisions of this Agreement, any other Loan Document right, remedy or otherwise; (b) security. For the avoidance of doubt no limitation set forth herein with respect to the [*****] Borrowers shall in any extension way alter, impair, limit, or renewal discharge any liability or obligation on the part of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogationNon-[*****] Borrowers.
(b) Each Individual [*****] Borrower further agrees that its agreement hereunder constitutes a has entered into the [*****] Guaranty Agreement to guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender in favor of any Individual Borrower or any other Person.
(c) The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of any Individual Borrower or otherwise.
(e) In furtherance of the foregoing and not in limitation of any other right which Lender may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no right of subrogation with respect to Credit Parties the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations or any other person; and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured herebyof the [*****] Obligations owed by each of the other [*****] Borrowers and the due performance by each of the other [*****] Borrowers of its respective duties and covenants made in favor of the Credit Parties in this Agreement and in the other Credit Documents, all on the terms and conditions set forth in the [*****] Guaranty Agreement. Notwithstanding Each [*****] Borrower agrees that neither its Guarantee under the [*****] Guaranty Agreement nor the Credit Parties’ liens and rights in any right of the Collateral shall be impaired or affected by any modification, supplement, extension or amendment of any Individual Borrower contract or agreement to askwhich the parties hereto may hereafter agree, demandnor by any modification, s▇▇ for, take release or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets alteration of any of the other Individual Borrowers (whether constituting part rights of the security or collateral given Credit Parties with respect to Lender to secure payment of all or any part of the obligations Collateral, nor by any delay, extension of time, renewal, compromise or other indulgence granted by the Administrative Agent or the Lenders with respect to any of the [*****] Obligations, nor by any other Individual agreements or arrangements whatever with the other [*****] Borrowers or otherwise) shall be with any other Borrowers or with any other Person, each [*****] Borrower hereby waiving all notice of any such delay, extension, release, substitution, renewal, compromise or other indulgence, and hereby are subordinated consenting to be bound thereby as fully and effectively as if it had expressly agreed thereto in advance. Except as may be expressly stated in this Agreement to the rights of Lender in those assets.
(h) Other than as expressly set forth in the Loan Documentscontrary, nothing shall discharge or satisfy the liability of any Individual each [*****] Borrower hereunder except the full performance is direct and payment unconditional as to all of the Obligations[*****] Obligations and may be enforced without requiring the Credit Parties first to resort to any other right, remedy or security.
Appears in 1 contract
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and Each Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that Guarantor,
(a) the due and punctual payment of such (i) the principal of and premium, if any, and interest on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations (other than those referred to in the preceding clause (i)) of the Borrowers under the Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Loan Documents (collectively, the "Obligations"). Each Guarantor further agrees that the Obligations may be extended or and renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) . Each Individual Borrower Guarantor waives presentment to, demand of of, payment from and protest to any Individual Borrower the Borrowers of any of the Obligations, and also waives notice of acceptance of its obligations guarantee and notice of protest for nonpayment. The obligations of each Individual Borrower a Guarantor hereunder shall not be affected by (a) the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against any Individual Borrower the Borrowers or the other Guarantor under the provisions of this Agreement, Agreement or any of the other Loan Document Documents or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, of any of the terms or provisions of this Agreement, any of the other Loan Documents, any guarantee or any other Loan Document or agreement; or (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (ec) the failure of any Lender take to exercise any steps to perfect and maintain any security interest in, right or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or remedy against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) . Each Individual Borrower Guarantor further agrees that its agreement hereunder guarantee constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by any Lender to any balance of any deposit account or credit on the books of any Lender in favor of or any Individual Borrower or any other Person.
(c) person. The obligations of each Individual Borrower Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, compromise, and shall not be subject to any defense or set-offsetoff, counterclaim, recoupment or termination whatsoever, whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement or under any other Loan Document, any guarantee or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the Obligations, or by any impossibility other act or omission which may or might in any manner or to any extent vary the performance risk of any such Guarantor or otherwise operate as a discharge of the Obligations such Guarantor as a matter of law or otherwise.
(d) equity. Each Individual Borrower Guarantor further agrees that its obligations hereunder guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization principal of any Individual Borrower or otherwise.
(e) In furtherance of the foregoing and not in limitation of any other right which Lender may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations or any other person; and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assets.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.or
Appears in 1 contract
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and Each Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that Guarantor, (a) the due and punctual payment of such (i) the principal of and premium, if any, and interest on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations (other than those referred to in the preceding clause (i)) of the Borrowers under the Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Loan Documents (collectively, the "Obligations"). Each Guarantor further agrees that the Obligations may be extended or and renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) . Each Individual Borrower Guarantor waives presentment to, demand of payment from and protest to any Individual Borrower the Borrowers of any of the Obligations, and also waives notice of acceptance of its obligations guarantee and notice of protest for nonpayment. The obligations of each Individual Borrower a Guarantor hereunder shall not be affected by (a) the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against any Individual Borrower the Borrowers or the other Guarantor under the provisions of this Agreement, Agreement or any of the other Loan Document Documents or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, of any of the terms or provisions of this AgreementAgreement any of the other Loan Documents, any guarantee or any other Loan Document or agreement; or (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (ec) the failure of any Lender take to exercise any steps to perfect and maintain any security interest in, right or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or remedy against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) . Each Individual Borrower Guarantor further agrees that its agreement hereunder guarantee constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by any Lender to any balance of any deposit account or credit on the books of any Lender in favor of or any Individual Borrower or any other Person.
(c) person. The obligations of each Individual Borrower Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, compromise, and shall not be subject to any defense or set-offsetoff, counterclaim, recoupment or termination whatsoever, whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement or under any other Loan Document, any guarantee or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the Obligations, or by any impossibility other act or omission which may or might in any manner or to any extent vary the performance risk of any such Guarantor or otherwise operate as a discharge of the Obligations such Guarantor as a matter of law or otherwise.
(d) equity. Each Individual Borrower Guarantor further agrees that its obligations hereunder guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the bankruptcy or reorganization of any Individual Borrower of the Borrowers or otherwise.
(e) . In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against any Individual Borrower Guarantor by virtue hereof, upon the failure of any other a Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower Guarantor hereby promises to and will, upon receipt of written demand by Lenderthe Administrative Agent, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such unpaid Obligations, and thereupon each Lender shall, in a reasonable manner, assign the amount of the Obligations then dueowed to it and paid by such Guarantor pursuant to this guarantee to such Guarantor, together with accrued such assignment to be pro tanto to the extent to which the Obligations in question were discharged by such Guarantor, or make such disposition thereof as such Guarantor shall direct (all without recourse to any Lender and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no without any representation or warranty by any Lender). Upon payment by a Guarantor of any sums as provided above, all rights of such Guarantor against a Borrower, as the case may be, arising as a result thereof by way of right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of otherwise shall in all or any part of such obligations or any other person; respects be subordinated and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject junior in right of payment to the prior indefeasible payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated Obligations to the rights of Lender in those assetsLenders.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
Appears in 1 contract
Sources: Credit Agreement (Popular Inc)
Cross-Guaranty. In order (i) Each Borrower (each to induce Lender be referred to extend credit to in this Section 2.14 as a “Cross-Guarantor” and collectively as the Individual Borrowers comprising Borrower hereunder“Cross-Guarantors”) hereby agrees that it is jointly and severally liable for, each Individual Borrower hereby irrevocably and unconditionally guaranteesand, as a primary obligor and not merely as a surety, and therefore does absolutely, irrevocably and unconditionally guarantee to Bank, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and as due at all times thereafter, of the Obligations of each other Borrower (such other Individual BorrowersObligations, collectively the “Cross-Guaranteed Obligations”). Each Individual Borrower Cross-Guarantor further agrees that the due and punctual payment of such Cross-Guaranteed Obligations may be extended or renewed, renewed in whole or in part, part without notice to or further assent from it, and that it will remain remains bound upon its guarantee hereunder notwithstanding any such extension or renewal renewal.
(ii) The provisions of this Section 2.14 (this “Cross-Guaranty”) are a guaranty of payment and not of collection. Each Cross-Guarantor waives any such Obligationright to require Bank to s▇▇ any other Loan Party, any other guarantor, or any other Person obligated for all or any part of the Cross-Guaranteed Obligations, or otherwise to enforce its payment against any collateral securing all or any part of the Cross-Guaranteed Obligations.
(iii) Except as otherwise provided for herein and to the extent provided for herein, the obligations of each Cross-Guarantor hereunder are unconditional and absolute and not subject to any reduction, limitation, impairment or termination for any reason (other than the Payment in Full of the Obligations), including:
(a) Each Individual Borrower waives presentment toany claim of waiver, demand of payment from and protest to any Individual Borrower release, extension, renewal, settlement, surrender, alteration, or compromise of any of the Cross-Guaranteed Obligations, by operation of law or otherwise;
(b) any change in the corporate or, as applicable, limited liability company existence, structure or ownership of any Loan Party or any other Person liable for any of the Cross-Guaranteed Obligations; First Financial Bank, National Association Borrowers: Environmental Quality Management, Inc. and also waives notice EQ Engineers, LLC Loan Number: 820106477
(c) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Loan Party or any other Person liable for any of acceptance the Cross-Guaranteed Obligations, or their assets or any resulting release or discharge of its obligations and notice any obligation of protest any Loan Party or any other Person liable for nonpayment. any of the Cross-Guaranteed Obligations; or
(d) the existence of any claim, setoff or other rights which any Cross-Guarantor may have at any time against any other Loan Party, Bank, or any other Person, whether in connection herewith or in any unrelated transactions.
(iv) The obligations of each Individual Borrower Cross-Guarantor hereunder shall are 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 Cross-Guaranteed Obligations or otherwise, or any provision of applicable law or regulation purporting to prohibit payment by any Loan Party or any other Person liable for any of the Cross-Guaranteed Obligations, of the Cross-Guaranteed Obligations or any part thereof.
(v) Further, the obligations of any Cross-Guarantor hereunder are not discharged or impaired or otherwise affected by by:
(a) the failure of Lender Bank to assert any claim or demand or to enforce any right remedy with respect to all or remedy against any Individual Borrower under part of the provisions of this Agreement, any other Loan Document or otherwise; Cross-Guaranteed Obligations;
(b) any extension waiver or renewal modification of or supplement to any provision of any of agreement relating to the Cross-Guaranteed Obligations; ;
(c) any rescissionrelease, waiver, amendment or modification ofnon-perfection, or release from, invalidity of any indirect or direct security for the obligations of Loan Parties (or any one or more of them) for all or any part of the Cross-Guaranteed Obligations or any obligations of any other Person liable for any of the terms or provisions of this Agreement, or any other Loan Document or agreement; Cross-Guaranteed Obligations;
(d) any action or failure to act by Bank with respect to any collateral securing any part of the Cross-Guaranteed Obligations; or
(e) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Cross-Guaranteed Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Obligationscircumstance, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or that might in any manner or to any extent vary the risk of such Individual Borrower Cross-Guarantor or that would otherwise operate as a discharge of a guarantor any Cross-Guarantor as a matter of law or equity or which would impair or eliminate any right (other than the Payment in Full of such Individual Borrower to subrogationthe Obligations).
(bvi) Each Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether To the fullest extent permitted by applicable law, each Cross-Guarantor hereby waives any defense based on or not any bankruptcy or similar proceeding shall have stayed the accrual or collection arising out of any defense of any Loan Party or the unenforceability of all or any part of the Cross-Guaranteed Obligations from any cause, or operated as a discharge thereof) and not merely the cessation from any cause of collection, and waives any right to require that any resort be had by Lender to any balance the liability of any deposit account or credit on Loan Party, other than the books Payment in Full of Lender in favor the Obligations. Without limiting the generality of the foregoing, each Cross-Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any Individual Borrower notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Loan Party or any other Person.
(c) The obligations . Bank may, at its election, foreclose on any Loan Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of each Individual Borrower hereunder shall not be subject any such Loan Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any reduction, limitation, impairment collateral securing all or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason a part of the invalidityCross-Guaranteed Obligations, illegality compromise or unenforceability adjust any part of the Cross-Guaranteed Obligations, make any other accommodation with any Loan Party or any other Person liable on any part of the Cross-Guaranteed Obligations or exercise any other right or remedy available to it against any Loan Party or any other Person liable on any of the Cross-Guaranteed Obligations, without affecting or impairing in any impossibility way the liability of such Cross-Guarantor under this Cross-Guaranty except upon the Payment in Full of the performance Obligations. To the fullest extent permitted by applicable law, each Cross-Guarantor waives any defense arising out of any such election even though that election may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Cross-Guarantor against any other Loan Party or any other Person liable on any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstatedCross-Guaranteed Obligations, as the case may be, if or any security.
(vii) No Cross-Guarantor will assert any right, claim or cause of action, including a claim of subrogation, contribution or indemnification that it has against any other Loan Party, any other Person liable on the Cross-Guaranteed Obligations, or any collateral, until the Payment in Full of the Obligations. First Financial Bank, National Association Borrowers: Environmental Quality Management, Inc. and EQ Engineers, LLC Loan Number: 820106477
(viii) If at any time payment, or any part thereof, payment of any Obligation portion of the Cross-Guaranteed Obligations is rescinded or must otherwise be restored by Lender or returned upon the insolvency, bankruptcy, or reorganization of any Loan Party or otherwise, each Cross-Guarantor’s obligations under this Cross-Guaranty with respect to that payment shall be reinstated at such time as though the payment had not been made and whether or not Bank is in possession of this Cross-Guaranty. Except as provided in the preceding sentence, each Cross-Guarantor’s obligations under this Cross-Guaranty will terminate when the Cross-Guaranteed Obligations have been fully paid, performed and satisfied and the Loan Documents are terminated. If acceleration of the time for payment of any of the Cross-Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Individual Borrower or otherwiseLoan Party, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Cross-Guaranteed Obligations shall nonetheless be payable by the Cross-Guarantors forthwith on demand by Bank.
(eix) In furtherance Each Cross-Guarantor assumes all responsibility for being and keeping itself informed of each other Loan Party’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the foregoing Cross-Guaranteed Obligations and the nature, scope and extent of the risks that each Cross-Guarantor assumes and incurs under this Cross-Guaranty, and agrees that Bank shall not have any duty to advise any Cross-Guarantor of information known to it regarding those circumstances or risks.
(x) The provisions of this Cross-Guaranty and the joint and several liability provisions applicable to Cross-Guarantors under this Agreement or the other Loan Documents (collectively, the “Joint and Several Provisions”) are severable, and in limitation any action or proceeding involving any state corporate or limited liability company law, or any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally (each an “Insolvency or Avoidance Action”), if the obligations of any other right which Lender may have at law Cross-Guarantor under this Cross-Guaranty or the Joint and Several Provisions would otherwise be held or determined in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment Insolvency or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause Avoidance Action to be paidavoidable, to Lender in cash an amount equal to invalid or unenforceable on account of the unpaid principal amount of such Obligations then dueCross-Guarantor’s liability under this Cross-Guaranty or the Joint and Several Provisions, together then, notwithstanding any other provision of this Cross-Guaranty or the Joint and Several Provisions to the contrary, the amount of such liability under this Cross-Guaranty and the Joint and Several Provisions shall, without any further action by any Loan Party or Bank, be automatically limited and reduced to the Maximum Liability (as defined below) with accrued respect to each such Cross-Guarantor. The provisions of this Cross-Guaranty and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no right of subrogation the Joint and Several Provisions, in each case with respect to the Maximum Liability of each Cross-Guarantor, are intended solely to preserve the rights of Bank to the maximum extent not subject to avoidance under applicable law, and no Cross-Guarantor nor any other Person shall have any right or claim under this Section with respect to such Maximum Liability except to the extent necessary in any Insolvency or Avoidance Action so that the obligations of any Cross-Guarantor under this Cross-Guaranty or the Joint and Several Provisions shall not be rendered voidable under applicable law. Each Cross-Guarantor agrees that the Cross-Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of each Cross-Guarantor without impairing this Cross-Guaranty or the Joint and Several Provisions or otherwise affecting the rights and remedies of Bank hereunder or with respect thereto, provided that, nothing in this sentence shall be construed to increase any Cross-Guarantor’s obligations under this Cross-Guaranty or the Joint and Several Provisions beyond its Maximum Liability. As used herein, “Maximum Liability” shall mean, with respect to any Cross-Guarantor, the highest amount which could be claimed by Bank from such Cross-Guarantor solely in its capacity as a Cross-Guarantor or under the Joint and Several Provisions, with respect to such Cross-Guarantor’s obligations under this Cross-Guaranty and/or the Joint and Several Provisions, without rendering such obligations unenforceable, voidable or avoidable under applicable law. For purposes of this Section 2.14(x), Maximum Liability shall be calculated after giving effect to (i) any right to receive, or obligations to make, contributions from the other Individual Borrowers; Loan Parties under Section 2.14(xi) or the other Loan Documents, as applicable, and (ii) waives the operation of any statute of limitation or other applicable law (collectively, the “Applicable Statute of Limitations”) which has the effect of extinguishing (by reason of the passage of time) a cause of action or proceeding or claim for relief that could otherwise (if not for the Applicable Statute of Limitations) render a Cross-Guarantor’s obligations under this Cross-Guaranty and/or the Joint and Several Provisions unenforceable, voidable or avoidable. For purposes of Section 2.14(xi), Maximum Liability shall be calculated without giving effect to (A) any right to enforce any remedy that Lender now has receive, or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations to make, contributions under Section 2.14(xi) or any other person; Loan Document, as applicable, and (iiiB) waives any benefit ofthe Applicable Statute of Limitations. First Financial Bank, National Association Borrowers: Environmental Quality Management, Inc. and any right to participate inEQ Engineers, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assets.
(h) Other than as expressly set forth in the LLC Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.Number: 820106477
Appears in 1 contract
Cross-Guaranty. In order 16.1. For valuable consideration, the receipt of which is hereby acknowledged, and to induce Lender the Lenders to extend credit make advances to the Individual Borrowers comprising Borrower hereunderBorrowers, each Individual Borrower (each such Borrower, in such capacity, the “Borrower-Guarantor”) hereby absolutely, irrevocably and unconditionally guaranteesguarantees prompt, as a primary obligor full and not merely as a suretycomplete payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any and all existing and future Obligations of the other Borrowers (collectively, the payment when “Other Borrowers” and as due individually, an “Other Borrower”) to the Agent, the Lenders, the LC Issuer and any holder of a Note, an Advance, or any other Secured Obligation under or with respect to the Loan Documents, whether for principal, interest, fees, expenses or otherwise (collectively, the “Guaranteed Obligations”).
16.2. Each Borrower-Guarantor waives notice of the acceptance of this guaranty and of the extension, incurrence or continuation of the Guaranteed Obligations of such other Individual Borrowersor any part thereof. Each Individual Borrower-Guarantor further waives all setoffs and counterclaims and presentment, protest, notice of notices delivered or demand made on any Other Borrower further agrees (except for any notice of demand or acceleration under Section 8.1), filing of claims with a court in the event of receivership, bankruptcy or reorganization of any Other Borrower or action or delinquency in respect of the Guaranteed Obligations or any part thereof, including any right to require the Agent and the Lenders to ▇▇▇ any Other Borrower, any other guarantor or any other Person obligated with respect to the Guaranteed Obligations or any part thereof, or otherwise to enforce payment thereof against any collateral securing the Guaranteed Obligations or any part thereof; provided, however, that the due and punctual if at any time any payment of any portion of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of any Other Borrower or otherwise, each Borrower-Guarantor’s obligations hereunder with respect to such Obligations payment shall be reinstated at such time as though such payment had not been made and whether or not the Agent, the LC Issuer or the Lenders are in possession of this guaranty. Credit may be extended granted or renewed, in whole or in part, continued to any Other Borrower by the LC Issuer and the Lenders without notice to or further assent authorization from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) Each Individual Borrower waives presentment to, demand of payment from and protest to any Individual Borrower Borrower-Guarantor regardless of any of the ObligationsOther Borrowers’ financial or other condition at the time of such grant or continuation. The Agent, the LC Issuer and also waives notice the Lenders shall have no obligation to disclose or discuss with any Borrower-Guarantor their assessments of acceptance the financial condition of the Other Borrowers.
16.3. Each Borrower-Guarantor hereby agrees that, to the fullest extent permitted by law, its obligations hereunder shall be continuing, absolute and notice unconditional under any and all circumstances and not subject to any reduction, limitation, impairment, termination, defense (other than indefeasible payment in full), setoff, counterclaim or recoupment whatsoever (all of protest for nonpaymentwhich are hereby expressly waived by it to the fullest extent permitted by law), whether by reason of any claim of any character whatsoever, including, without limitation, any claim of waiver, release, surrender, alteration or compromise. This guaranty is a guaranty of payment and not of collection, is a primary obligation of each Borrower-Guarantor and not one of surety. The obligations validity and enforceability of each Individual Borrower hereunder this guaranty shall not be impaired or affected by any of the following: (a) any extension, modification or renewal of, or indulgence with respect to, or substitutions for, the failure of Lender to assert Guaranteed Obligations or any claim part thereof or demand or to enforce any right or remedy against agreement relating thereto at any Individual Borrower under the provisions of this Agreement, any other Loan Document or otherwisetime; (b) any extension failure or renewal of omission to perfect or maintain any of the Obligations; (c) any rescission, waiver, amendment or modification oflien on, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for or to enforce any right, power or remedy with respect to the ObligationsGuaranteed Obligations or any part thereof or any agreement relating thereto, if anyor any collateral securing the Guaranteed Obligations or any part thereof; (fc) any change in the corporate, partnership or other existence, structure or ownership waiver of any Individual Borrower right, power or remedy or of any default with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof; (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any collateral securing the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other guarantor obligation of any of Person with respect to the ObligationsGuaranteed Obligations or any part thereof; (ge) the enforceability or validity of the Guaranteed Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof; (f) the application of payments received from any source to the payment of obligations other than the Guaranteed Obligations, any part thereof or amounts which are not covered by this guaranty even though the Agent, the LC Issuer and the Lenders might lawfully have elected to apply such payments to any part or all of the Guaranteed Obligations or to amounts which are not covered by this guaranty; (g) any change in the ownership of any Other Borrower or the insolvency, bankruptcy or any other change in the legal status of any Other Borrower; (h) any change in or the imposition of any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Guaranteed Obligations; (i) the failure of any Borrower-Guarantor or any Other Borrower to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the Guaranteed Obligations or this guaranty, or to take any other action required in connection with the performance of all obligations pursuant to the Guaranteed Obligations or this guaranty; (j) the existence of any claim, setoff or other rights which any Borrower-Guarantor may have at any time against any Other Borrower, or any other invalidity Person in connection herewith or unenforceability relating to an unrelated transaction; (k) the Lenders’ election, in any case or against proceeding instituted under chapter 11 of the United States Bankruptcy Code, of the application of Section 1111(b)(2) of the United States Bankruptcy Code; (l) any Individual Borrower borrowing, use of cash collateral, or grant of a security interest by any Other Borrower, as debtor in possession, under Section 363 or 364 of the United States Bankruptcy Code; (m) the disallowance of all or any other guarantor portion of any of the Obligations, Lenders’ claims for any reason related to this Agreement, repayment of the Guaranteed Obligations under Section 502 or 506 of the United States Bankruptcy Code; or (n) any other Loan Documentcircumstances, whether or not similar to any of the foregoing, which could constitute a defense to a guarantor; all whether or not any Borrower-Guarantor shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (n) of this paragraph. It is agreed that any Borrower-Guarantor’s liability hereunder is several and independent of any other guaranties or other obligations at any time in effect with respect to the Guaranteed Obligations or any part thereof and that any Borrower-Guarantor’s liability hereunder may be enforced regardless of the existence, validity, enforcement or non-enforcement of any such other guaranties or other obligations or any provision of any applicable law, decree, order law or regulation of any jurisdiction purporting to prohibit the payment by such Individual any Other Borrower or any other guarantor of the Guaranteed Obligations in the manner agreed upon between any Other Borrower, as applicable, and the Agent, the LC Issuer and the Lenders.
16.4. Until the irrevocable payment in full of the Guaranteed Obligations and termination of all commitments which could give rise to any Guaranteed Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) Each Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender in favor of any Individual Borrower or any other Person.
(c) The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setBorrower-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of any Individual Borrower or otherwise.
(e) In furtherance of the foregoing and not in limitation of any other right which Lender may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it Guarantors shall have no right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives Guaranteed Obligations and hereby waive any right to enforce any remedy that Lender which the Agent or the Lenders now has have or may hereafter have against any of the Borrower, any endorser, any other Individual Borrowers any endorser Borrower-Guarantor or any other guarantor of all or any part of such obligations or any other person; the Guaranteed Obligations, and (iii) waives the Borrower-Guarantors hereby waive any benefit of, and any right to participate in, any security or collateral given to Lender the Agent or the Lenders to secure payment of the payment or performance of all Guaranteed Obligations or any part of such obligations thereof or any other liability of the other parties Borrowers to Lenderthe Agent or the Lenders.
(g) 16.5. Each Individual Borrower agrees that Borrower-Guarantor authorizes the Lenders to take any and all claims that it may have against action or exercise any remedy with respect to any collateral from time to time securing the Guaranteed Obligations, which the Lenders in their sole discretion shall determine, without notice to such Borrower-Guarantor.
16.6. In the event the Lenders in their sole discretion elect to give notice of any action with respect to any collateral securing the other Individual Borrowers, any endorser or any other guarantor of all Guaranteed Obligations or any part thereof, ten (10) days’ prior written notice to each Borrower-Guarantor at the address as provided in Article XIII shall be deemed reasonable notice of any matters contained in such notice. Each Borrower-Guarantor consents and agrees that none of the obligations Agent, the LC Issuer or the Lenders shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of such Borrower-Guarantor or against or in payment of any or all of the other Individual Borrowers, or against any Guaranteed Obligations.
16.7. In the event that acceleration of their respective properties, shall be subordinate and subject in right of the time for payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Other Borrower, or otherwise, all such amounts shall nonetheless be payable by each Borrower-Guarantor forthwith upon demand by the Agent, the LC Issuer or the Lenders. Each Borrower-Guarantor further agrees that, to the extent that any Other Borrower makes a payment or payments to any of the Lenders on the Guaranteed Obligations, or the Agent, the LC Issuer or the Lenders receive any proceeds of collateral securing the Guaranteed Obligations, which payment or receipt of proceeds or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be returned or repaid to any Other Borrower, its estate, trustee, receiver, debtor in possession or any other Individual Borrowers party, including, without limitation, such Borrower-Guarantor, under any insolvency or bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment, return or repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date when such initial payment, reduction or satisfaction occurred.
16.8. Each Borrower-Guarantor agrees that, as between such Borrower-Guarantor on the one hand, and the Lenders, the LC Issuer and the Agent, on the other hand, the obligations of any Other Borrower guaranteed under this Article XVI may be declared to be forthwith due and payable, or may be deemed automatically to have been accelerated, as provided in Section 8.1 hereof for purposes of this Article XVI, notwithstanding any stay, injunction or other prohibition (whether constituting in a bankruptcy proceeding affecting any Other Borrower or otherwise) preventing such declaration as against any Other Borrower and that, in the event of such declaration or automatic acceleration, such obligations (whether or not due and payable by any Other Borrower) shall forthwith become due and payable by such Borrower-Guarantor for purposes of this Article XVI.
16.9. No delay on the part of the security Agent, the LC Issuer or collateral given to Lender to secure payment the Lenders in the exercise of all any right power or remedy shall operate as a waiver thereof, and no single or partial exercise by the Agent, the LC Issuer or the Lenders of any part right, power or remedy shall preclude any further exercise thereof; nor shall any amendment, supplement, modification or waiver of any of the obligations terms or provisions of this guaranty be binding upon the other Individual Borrowers Agent, the LC Issuer or otherwise) shall be and hereby are subordinated to the rights of Lender in those assets.
(h) Other than Lenders, except as expressly set forth in a writing duly signed and delivered on the Loan DocumentsLenders’ behalf by the Agent. The failure by the Agent, nothing shall discharge the LC Issuer or satisfy the liability Lenders at any time or times hereafter to require strict performance of any Individual of the provisions, warranties, terms and conditions contained in any promissory note, security agreement, agreement, guaranty, instrument or document now or at any time or times hereafter executed pursuant to the terms of, or in connection herewith, by any Other Borrower or any Borrower-Guarantor and delivered to the Agent, the LC Issuer or the Lenders shall not waive, affect or diminish any right of the Agent, the LC Issuer or the Lenders at any time or times hereafter to demand strict performance thereof, and such right shall not be deemed to have been waived by any act or knowledge of the Agent, the LC Issuer or the Lenders, their agents, officers or employees, unless such waiver is contained in an instrument in writing duly signed and delivered on the Lenders’ behalf by the Agent. No waiver by the Agent, the LC Issuer or the Lenders of any default shall operate as a waiver of any other default or the same default on a future occasion, and no action by the Agent, the LC Issuer or the Lenders permitted hereunder except shall in any way affect or impair the Agent’s, the LC Issuer’s or the Lenders’ rights or powers, or the obligations of any Borrower-Guarantor under this guaranty. Any determination by a court of competent jurisdiction of the amount of any Guaranteed Obligations owing by any Other Borrower to the Lenders shall be conclusive and binding on each Borrower-Guarantor irrespective of whether such Borrower-Guarantor was a party to the suit or action in which such determination was made.
16.10. Each Other Guarantor (a “Contributing Guarantor”) agrees (subject to the last sentence of this Section) that, in the event a payment shall be made by any Borrower-Guarantor under this Guaranty and such Borrower-Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the applicable Other Borrower, each Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment multiplied by a fraction of which the numerator shall be the net worth of such Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof. Notwithstanding any provision of this Agreement to the contrary, all rights of the Borrower-Guarantors hereunder and all other rights of indemnity, contribution or subrogation under applicable law or otherwise relating to or arising out of performance of this Guaranty, shall be fully subordinated to the indefeasible payment in full in cash of the Guaranteed Obligations. No failure on the part of any Borrower-Guarantor to make the payments required hereunder (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Borrower-Guarantor with respect to this Guaranty, and each Borrower-Guarantor shall remain liable for the full performance amount of the obligations of such Borrower-Guarantor under this Guaranty.
16.11. In addition to and without limitation of any rights, powers or remedies of the Agent, the LC Issuer or the Lenders under applicable law, any time after maturity of the Guaranteed Obligations, whether by acceleration or otherwise, the Agent, the LC Issuer or the Lenders may, in their sole discretion, with notice after the fact to any Borrower-Guarantor and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply toward the payment of the Guaranteed Obligations
(a) any indebtedness due or to become due from any of the Lenders to any Borrower-Guarantor, and (b) any moneys, credits or other property belonging to any Borrower-Guarantor (including all account balances, whether provisional or final and whether or not collected or available) at any time held by or coming into the possession of any of the Agent, the LC Issuer or any Lender whether for deposit or otherwise.
16.12. This Guaranty shall bind each Borrower-Guarant
Appears in 1 contract
Sources: Credit Agreement (Midas Inc)
Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Borrower hereby irrevocably and Each Guarantor unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that Guarantor, (a) the due and punctual payment of such (i) the principal of and premium, if any, and interest on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations (other than those referred to in the preceding clause (i)) of the Borrowers under the Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Loan Documents (collectively, the "Obligations"). Each Guarantor further agrees that the Obligations may be extended or and renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.
(a) . Each Individual Borrower Guarantor waives presentment to, demand of payment from and protest to any Individual Borrower the Borrowers of any of the Obligations, and also waives notice of acceptance of its obligations guarantee and notice of protest for nonpayment. The obligations of each Individual Borrower a Guarantor hereunder shall not be affected by (a) the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against any Individual Borrower the Borrowers or the other Guarantor under the provisions of this Agreement, Agreement or any of the other Loan Document Documents or otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, of any of the terms or provisions of this AgreementAgreement any of the other Loan Documents, any guarantee or any other Loan Document or agreement; or (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (ec) the failure of any Lender take to exercise any steps to perfect and maintain any security interest in, right or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or remedy against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) . Each Individual Borrower Guarantor further agrees that its agreement hereunder guarantee constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by any Lender to any balance of any deposit account or credit on the books of any Lender in favor of or any Individual Borrower or any other Person.
(c) person. The obligations of each Individual Borrower Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, compromise, and shall not be subject to any defense or set-offsetoff, counterclaim, recoupment or termination whatsoever, whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement or under any other Loan Document, any guarantee or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the Obligations, or by any impossibility other act or omission which may or might in any manner or to any extent vary the performance risk of any such Guarantor or otherwise operate as a discharge of the Obligations such Guarantor as a matter of law or otherwise.
(d) equity. Each Individual Borrower Guarantor further agrees that its obligations hereunder guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the bankruptcy or reorganization of any Individual Borrower of the Borrowers or otherwise.
(e) . 39 In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against any Individual Borrower Guarantor by virtue hereof, upon the failure of any other a Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower Guarantor hereby promises to and will, upon receipt of written demand by Lenderthe Administrative Agent, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such unpaid Obligations, and thereupon each Lender shall, in a reasonable manner, assign the amount of the Obligations then dueowed to it and paid by such Guarantor pursuant to this guarantee to such Guarantor, together with accrued such assignment to be pro tanto to the extent to which the Obligations in question were discharged by such Guarantor, or make such disposition thereof as such Guarantor shall direct (all without recourse to any Lender and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no without any representation or warranty by any Lender). Upon payment by a Guarantor of any sums as provided above, all rights of such Guarantor against a Borrower, as the case may be, arising as a result thereof by way of right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of otherwise shall in all or any part of such obligations or any other person; respects be subordinated and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject junior in right of payment to the prior indefeasible payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated Obligations to the rights of Lender in those assetsLenders.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
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Cross-Guaranty. In order to induce Lender to extend credit to the Individual Borrowers comprising Borrower hereunder, each Individual Each Borrower hereby irrevocably agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guaranteesguarantees to Bank and its respective successors and assigns, as the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of all Obligations owed or hereafter owing to Bank by the other Borrowers irrespective of whether or not such Borrower is considered to be a primary obligor of such obligations. Each Borrower agrees that its guaranty obligation (the “Guaranty Obligations”) hereunder is a continuing guaranty of payment and performance and not merely as a suretyof collection, the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual Borrower further agrees that the due and punctual payment of such Obligations may its obligations under this Article IX shall not be extended or renewed, discharged until Payment in whole or in part, without notice to or further assent from itFull, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal obligations under this Article IX shall be absolute and unconditional, irrespective of, and unaffected by an of any such Obligation.the following:
(a) Each Individual Borrower waives presentment toany extension, demand renewal, settlement, compromise, waiver or release in respect of payment from and protest to any Individual Borrower obligation of the Borrowers under this Agreement, any Note, or any other Loan Document, by operation of law or otherwise or any obligation of any other guarantor of any of the Obligations, and also waives notice ;
(b) any modification or amendment of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Individual Borrower hereunder shall not be affected by (a) the failure of Lender or supplement to assert any claim or demand or to enforce any right or remedy against any Individual Borrower under the provisions of this Agreement, any Note, or any other Loan Document or otherwise; Document;
(bc) any extension release, nonperfection or renewal invalidity of any direct or indirect security for any obligation of the Borrowers under this Agreement, any Note, any security agreement, any Loan Document, or any obligations of any other guarantor of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; ;
(d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other corporate existence, structure or ownership of any Individual Borrower of the Borrowers or any other guarantor of any of the Obligations; (g) the enforceability , or validity any insolvency, bankruptcy, reorganization or other similar proceeding affecting any of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereofBorrowers, or any other guarantor of the Obligations, or its assets or any resulting release or discharge of any obligation of any of the Borrowers, or any other guarantor of any of the Obligations;
(e) the existence of any claim, setoff or other rights which a Borrower may have at any time against any of the other Borrowers, any other guarantor of any of the Obligations, the Bank or any other Person, whether in connection herewith or any unrelated transactions;
(f) any invalidity or unenforceability relating to or against any Individual Borrower of the Borrowers, or any other guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law, decree, order law or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower the Borrowers, or any other guarantor of the Obligations, of the principal of or interest on any of Note or any other amount payable by the Obligations Borrowers under this Credit Agreement, the Notes, or otherwise affecting any term of any of the Obligationsother Loan Document; or or
(hg) any other act, act or omission to act or delay to do of any kind by the Borrowers, any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) Each Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit account or credit on the books of Lender in favor of any Individual Borrower or any other Person.
(c) The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, the Bank or any impossibility other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of the Borrowers’ obligations hereunder. Each Borrower shall be regarded, and shall be in the performance of any of the Obligations or otherwise.
(d) Each Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstatedsame position, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon the bankruptcy or reorganization of any Individual Borrower or otherwise.
(e) In furtherance of the foregoing and not in limitation of any other right which Lender may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
(f) Each Individual Borrower (i) agrees that it shall have no right of subrogation debtor with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of all or any part of such obligations or any other person; and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to LenderObligations guaranteed hereunder.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured hereby. Notwithstanding any right of any Individual Borrower to ask, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assets.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
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Cross-Guaranty. In order to induce Lender the Lenders to extend credit to the Individual Borrowers comprising Borrower hereunder, but subject to the penultimate sentence of this Article XVI, each Individual Borrower hereby absolutely and irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Individual BorrowersSecured Obligations. Each Individual Borrower further agrees that the due and punctual payment of such Secured Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Secured Obligation.
(a) . Each Individual Borrower waives presentment to, demand of payment from and protest to any Individual Borrower of any of the Secured Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Individual Borrower hereunder shall not be affected by (a) the failure of the Administrative Agent, the Issuing Bank or any Lender to assert any claim or demand or to enforce any right or remedy against any Individual Borrower under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of any of the Secured Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations; (e) the failure of Lender the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Secured Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Secured Obligations; (g) the enforceability or validity of the Secured Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Secured Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Individual Borrower or any other guarantor of any of the Secured Obligations, for any reason related to this Agreement, any Hedging Agreement, any Treasury Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Individual Borrower or any other guarantor of the Secured Obligations, of any of the Secured Obligations or otherwise affecting any term of any of the Secured Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.
(b) . Each Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Secured Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by the Administrative Agent, the Issuing Bank or any Lender to any balance of any deposit account or credit on the books of the Administrative Agent, the Issuing Bank or any Lender in favor of any Individual Borrower or any other Person.
(c) . The obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Secured Obligations, any impossibility in the performance of any of the Secured Obligations or otherwise.
(d) . Each Individual Borrower further agrees that its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Secured Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Secured Obligation (including a payment effected through exercise of a right of setoff) is rescinded rescinded, or is or must otherwise be restored or returned by the Administrative Agent, the Issuing Bank or any Lender upon the insolvency, bankruptcy or reorganization of any Individual Borrower or otherwise.
otherwise (e) including pursuant to any settlement entered into by a Holder of Secured Obligations in its discretion). In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, the Issuing Bank or any Lender may have at law or in equity against any Individual Borrower by virtue hereof, upon the failure of any other Borrower to pay any Secured Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and will, upon receipt of written demand by the Administrative Agent, the Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent, the Issuing Bank or any Lender in cash an amount equal to the unpaid principal amount of such the Secured Obligations then due, together with accrued and unpaid interest thereon.
. Each Borrower further agrees that if payment in respect of any Secured Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Secured Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent, the Issuing Bank or any Lender, disadvantageous to the Administrative Agent, the Issuing Bank or any Lender in any material respect, then, at the election of the Administrative Agent, such Borrower shall make payment of such Secured Obligation in Dollars (fbased upon the applicable Equivalent Amount in effect on the date of payment) Each Individual Borrower (i) agrees and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by the Administrative Agent and, as a separate and independent obligation, shall indemnify the Administrative Agent, the Issuing Bank and any Lender against any losses or reasonable out-of-pocket expenses that it shall have no sustain as a result of such alternative payment. Upon payment by any Borrower of any sums as provided above, all rights of such Borrower against any Borrower arising as a result thereof by way of right of subrogation with respect to the obligations of the other Individual Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual Borrowers any endorser or any guarantor of otherwise shall in all or any part of such obligations or any other person; respects be subordinated and (iii) waives any benefit of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or any part of such obligations or any other liability of the other parties to Lender.
(g) Each Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective properties, shall be subordinate and subject junior in right of payment to the prior indefeasible payment in full in cash of all obligations secured hereby. Notwithstanding any right of any Individual the Secured Obligations owed by such Borrower to askthe Administrative Agent, demand, s▇▇ for, take or receive any payment from the other Individual Borrowers, all rights, liens Issuing Bank and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing, in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are subordinated to the rights of Lender in those assetsLenders.
(h) Other than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower hereunder except the full performance and payment of the Obligations.
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