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