Guarantor Provisions. (a) Each Borrower, as joint and several primary obligor of the Obligations directly incurred by any other Borrower or by any Affiliated Borrower, authorizes Administrative Agent and Lenders, without giving notice to such Borrower or to any other Borrower or any Affiliated Borrower (to the extent permitted hereunder or under any Affiliated Financing Document) or obtaining such Borrower's consent or any other Borrower's or Affiliated Borrower's consent (to the extent permitted hereunder or under any Affiliated Financing Document) and without affecting the liability of such Borrower for the Obligations directly incurred by the other Borrower or Affiliated Borrower, from time to time to: (i) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, liquidate, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to any Borrower in respect thereof; or modify in any manner any documents relating to the Obligations; (ii) declare all Obligations due and payable upon the occurrence and during the continuance of an Event of Default; (iii) take and hold security for the performance of the Obligations of any Borrower and exchange, enforce, waive and release any such security; (iv) release, surrender or exchange any deposits or other property securing the Obligations or on which Administrative Agent and/or any applicable Lender(s) at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Obligations of any other Borrower or Affiliated Borrower or such Borrower; or compromise, settle, renew, extend the time for payment, discharge the performance of, decline to enforce, or release all or any obligations of any such endorser or guarantor or other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person; (v) accept partial payments, apply payments received by Administrative Agent and/or any applicable Lender(s) from any Borrower or any Affiliated Borrower to any Obligations, in such order as Administrative Agent shall determine, in its sole discretion; and (vi) subject to the provisions hereof, assign this Agreement in whole or in part. (b) Each Borrower, as a primary, joint and several obligor with respect to the Obligations directly incurred by any other Borrower or any Affiliated Borrower, waives: (i) any defense based upon any legal disability or other defense of any other Borrower or any Affiliated Borrower, or by reason of the cessation or limitation of the liability of any other Borrower or any Affiliated Borrower from any cause (other than full payment of all Obligations), including, without limitation, failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury; (ii) any defense based upon any legal disability or other defense of any other guarantor or other Person; (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 Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower or any defect in the formation of any other Borrower or Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower; (iv) any defense based upon the application by any other Borrower or Affiliated Borrower of the proceeds of the credit facilities or the loans under the Affiliated Financing Documents for purposes other than the purposes represented by such other Borrower or Affiliated Borrower to Administrative Agent and Lenders or intended or understood by Administrative Agent and Lenders or such Borrower; (v) any defense based on such Borrower's rights, under statute or otherwise, to require Administrative Agent and/or any applicable Lender(s) to xxx any other Borrower or Affiliated Borrower or otherwise to exhaust its rights and remedies against any other Borrower or Affiliated Borrower or any other Person or against any collateral before seeking to enforce its right to require such Borrower to satisfy the Obligations of any other Borrower or Affiliated Borrower; (vi) any defense based on Administrative Agent's or any Lender's failure at any time to require strict performance by any Borrower of any provision of the Financing Documents or by any Affiliated Borrower of any provisions of the Affiliated Financing Documents. Such Borrower agrees that no such failure shall waive, alter or diminish any right of Administrative Agent and/or any applicable Lender(s) thereafter to demand strict compliance and performance therewith. Nothing contained herein shall prevent Administrative Agent and/or any applicable Lender(s) from foreclosing on any Lien, or exercising any rights available to Administrative Agent and/or any applicable Lender(s) thereunder, and the exercise of any such rights shall not constitute a legal or equitable discharge of such Borrower; (vii) any defense arising from any act or omission of Administrative Agent and/or any applicable Lender(s) which changes the scope of such Borrower's risks hereunder, but the foregoing shall not limit any Credit Party from asserting claims based on breaches of this Agreement or willful misconduct by Administrative Agent and/or any applicable Lender; (viii) any defense based upon Administrative Agent's or any Lender's election of any remedy against such Borrower or any other Borrower or Affiliated Borrower or any of them; any defense based on the order in which Administrative Agent and/or any Lender(s) enforces its remedies; (ix) any defense based on (A) Administrative Agent's or any applicable Lender's surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Administrative Agent's or any applicable Lender's abstaining from taking advantage of or realizing upon any Lien or other Guarantee, and (C) any impairment of collateral securing the Obligations, including, without limitation, Administrative Agent's or any applicable Lender's failure to perfect or maintain a Lien in such collateral; (x) any defense based upon Administrative Agent's or any Lender's failure to disclose to such Borrower any information concerning any other Borrower's or Affiliated Borrower's financial condition or any other circumstances bearing on any other Borrower's or Affiliated Borrower's ability to pay the Obligations; (xi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal; (xii) any defense based upon Administrative Agent's and/or any Lender's election, in any proceeding instituted under the Bankruptcy Code, of the application of Bankruptcy Code §1111(b)(2) or any successor statute; (xiii) any defense based upon any borrowing or any grant of a security interest under Bankruptcy Code §364; (xiv) any defense based on Administrative Agent's and/or any Lender's failure to be diligent or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations; (xv) except as otherwise expressly set forth herein: notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase such Borrower's risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of any other Borrower's receivership or bankruptcy and all other notices and demands to which such
Appears in 1 contract
Samples: Credit and Security Agreement (American Retirement Corp)
Guarantor Provisions. (a) Each BorrowerSolely with respect to Term Loan A:
a. CrystalTech, as joint and several primary obligor of the Obligations directly incurred by any other Borrower or by any Affiliated Borrower, NSBF authorizes Administrative Agent and LendersLender, without giving notice to such Borrower or to any other Borrower or any Affiliated Borrower (to the extent permitted hereunder or under any Affiliated Financing Document) CrystalTech or obtaining such Borrower's CrystalTech’s consent or any other Borrower's or Affiliated Borrower's consent (to the extent permitted hereunder or under any Affiliated Financing Document) and without affecting the liability of such Borrower for the Obligations directly incurred by the other Borrower or Affiliated BorrowerNSBF, from time to time to:
(i) i. compromise, settle, renew, extend the time for payment, change the manner or terms of payment, liquidate, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to any Borrower NSBF in respect thereof; or modify in any manner any documents relating to the Obligations;
(ii) . declare all Obligations of CrystalTech due and payable upon the occurrence and during the continuance of an Event of Default;
(iii) . take and hold security for the performance of the Obligations of any Borrower NSBF and exchange, enforce, waive and release any such security;
(iv) . subject to the Trust Agreement and the Multi-Party Agreement apply and reapply such security and direct the order or manner of sale thereof as Lender, in its sole discretion, may determine;
v. release, surrender or exchange any deposits or other property securing the CrystalTech Obligations or on which Administrative Agent and/or any applicable Lender(s) Lender at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Obligations of any other Borrower NSBF or Affiliated Borrower or such BorrowerCrystalTech; or compromise, settle, renew, extend the time for payment, discharge the performance of, decline to enforce, or release all or any obligations of any such endorser or guarantor or other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person;
(v) accept partial payments, vi. apply payments Payments received by Administrative Agent and/or any applicable Lender(s) Lender from any Borrower or any Affiliated Borrower CrystalTech to any Obligations, in such order as Administrative Agent Lender shall determine, in its sole discretion; and
(vi) subject to the provisions hereof, vii. assign this Agreement in whole or in part.
(b) Each Borrowerb. NSBF, as a primaryprimary obligor, and CrystalTech as joint and several obligor with respect to the Obligations directly incurred by any other Borrower or any Affiliated Borrower, NSBF waives:
(i) i. any defense based upon any legal disability or other defense of any other Borrower or any Affiliated Borrower, or by reason of the cessation or limitation of the liability of any other Borrower or any Affiliated Borrower from any cause (other than full payment of all Obligations), including, without limitation, failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury;
(ii) . any defense based upon any legal disability or other defense of any other guarantor or other Person;
(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 Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower or any defect in the formation of any other Borrower or Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower;
(iv) . any defense based upon the application by any other Borrower or Affiliated Borrower of the proceeds of the credit facilities or the loans under the Affiliated Financing Documents for purposes other than the purposes represented by such other Borrower or Affiliated Borrower to Administrative Agent and Lenders Lender or intended or understood by Administrative Agent and Lenders Lender or such Borrower;
(v) v. any defense based on such Borrower's ’s rights, under statute or otherwise, to require Administrative Agent and/or any applicable Lender(s) Lender to xxx any other Borrower or Affiliated Borrower or otherwise to exhaust its rights and remedies against any other Borrower or Affiliated Borrower or any other Person or against any collateral before seeking to enforce its right to require such Borrower to satisfy the Obligations of any other Borrower or Affiliated Borrower;
(vi) . any defense based on Administrative Agent's or any Lender's ’s failure at any time to require strict performance by any Borrower of any provision of the Financing Documents or by any Affiliated Borrower of any provisions of the Affiliated Financing Loan Documents. Such Borrower agrees that no such failure shall waive, alter or diminish any right of Administrative Agent and/or any applicable Lender(s) Lender thereafter to demand strict compliance and performance therewith. Nothing contained herein shall prevent Administrative Agent and/or any applicable Lender(s) Lender from foreclosing on any Lien, or exercising any rights available to Administrative Agent and/or any applicable Lender(s) Lender thereunder, and the exercise of any such rights shall not constitute a legal or equitable discharge of such Borrower;
(vii) . any defense arising from any act or omission of Administrative Agent and/or any applicable Lender(s) Lender which changes the scope of such Borrower's ’s risks hereunder, but the foregoing shall not limit any Credit Party from asserting claims based on breaches of this Agreement or willful misconduct by Administrative Agent and/or any applicable Lender;
(viii) . any defense based upon Administrative Agent's or any Lender's ’s election of any remedy against such Borrower or any other Borrower or Affiliated Borrower or any of them; any defense based on the order in which Administrative Agent and/or any Lender(s) Lender enforces its remedies;
(ix) . any defense based on (A) Administrative Agent's or any applicable Lender's ’s surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Administrative Agent's or any applicable Lender's ’s abstaining from taking advantage of or realizing upon any Lien or other Guarantee, and (C) any impairment of collateral securing the Obligations, including, without limitation, Administrative Agent's or any applicable Lender's ’s failure to perfect or maintain a Lien in such collateral;
(x) x. any defense based upon Administrative Agent's or any Lender's ’s failure to disclose to such Borrower any information concerning any other Borrower's or Affiliated Borrower's ’s financial condition or any other circumstances bearing on any other Borrower's or Affiliated Borrower's ’s ability to pay the Obligations;
(xi) . any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal;
(xii) . any defense based upon Administrative Agent's and/or any Lender's ’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Bankruptcy Code §1111(b)(2) or any successor statute;
(xiii) . any defense based upon any borrowing or any grant of a security interest under Bankruptcy Code §364;
(xiv) . any defense based on Administrative Agent's and/or any Lender's ’s failure to be diligent or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations;
(xv) . except as otherwise expressly set forth herein: notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase such Borrower's ’s risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of any other Borrower's ’s receivership or bankruptcy and all other notices and demands to which suchsuch Borrower might otherwise be entitled (and agrees the same shall not have to be made on the other Borrower as a condition precedent to such Borrower’s obligations hereunder);
xvi. any defense based on errors and omissions by Lender in connection with its administration of the credit facilities or the Loans except to the extent constituting gross negligence or willful misconduct;
xvii. any defense based on application of fraudulent conveyance or transfer law or shareholder distribution law to any of the Obligations or the security therefor;
xviii. any defense based on Lender’s failure to seek relief from stay or adequate protection in any other Borrower’s bankruptcy proceeding or any other act or omission by and/or any Lender which impairs such Borrower’s prospective subrogation rights;
xix. any defense based on legal prohibition of Lender’s acceleration of the maturity of the Obligations during the occurrence of an Event of Default or any other legal prohibition on enforcement of any other right or remedy of Lender with respect to the Obligations and the security therefor; and
xx. any defense available to a surety under applicable law.
c. Each Borrower further agrees that its obligations hereunder shall not be impaired in any manner whatsoever by any bankruptcy, extensions, moratoria or other relief granted to any other Borrower pursuant to any statute presently in force or hereafter enacted.
d. Each Borrower authorizes Lender to exercise, in its sole discretion, any right, remedy or combination thereof which may then be available to Lender, since it is such Borrower’s intent that the Obligations be absolute, independent and unconditional obligations of such Borrower under all circumstances. Notwithstanding any foreclosure of any Lien with respect to any or all of any property securing the Obligations, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each Borrower shall remain bound under such Borrower’s Guarantee of the Obligations directly incurred by any other Borrower. Notwithstanding anything else herein to the contrary, NSBF is not jointly and severally liable for the obligation owing exclusively from any other Borrower.
e. This Agreement is a primary and original obligation of each of the Borrowers and each of the Borrowers shall be liable for all existing and future Obligations of any other Borrower as fully as if such Obligations were directly incurred by such Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Newtek Business Services Inc)
Guarantor Provisions. (a) Each Borrower, as joint and several primary obligor of the Obligations directly incurred by any other Borrower or by any Affiliated Borrower, authorizes Administrative Agent and Lenders, without giving notice to such Borrower or to any other Borrower or any Affiliated Borrower (to the extent permitted hereunder or under any Affiliated Financing Document) or obtaining such Borrower's ’s consent or any other Borrower's ’s or Affiliated Borrower's ’s consent (to the extent permitted hereunder or under any Affiliated Financing Document) and without affecting the liability of such Borrower for the Obligations directly incurred by the other Borrower or Affiliated Borrower, from time to time to:
(i) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, liquidate, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to any Borrower in respect thereof; or modify in any manner any documents relating to the Obligations;
(ii) declare all Obligations due and payable upon the occurrence and during the continuance of an Event of Default;
(iii) take and hold security for the performance of the Obligations of any Borrower and exchange, enforce, waive and release any such security;
(iv) apply and reapply such security and direct the order or manner of sale thereof as Administrative Agent and/or any applicable Lender(s), in its sole discretion, may determine;
(v) release, surrender or exchange any deposits or other property securing the Obligations or on which Administrative Agent and/or any applicable Lender(s) at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Obligations of any other Borrower or Affiliated Borrower or such Borrower; or compromise, settle, renew, extend the time for payment, discharge the performance of, decline to enforce, or release all or any obligations of any such endorser or guarantor or other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person;
(vvi) accept partial payments, apply payments received by Administrative Agent and/or any applicable Lender(s) from any Borrower or any Affiliated Borrower to any Obligations, in such order as Administrative Agent shall determine, in its sole discretion; and
(vivii) subject to the provisions hereof, assign this Agreement in whole or in part.
(b) Each Borrower, as a primary, joint and several obligor with respect to the Obligations directly incurred by any other Borrower or any Affiliated Borrower, waives:
(i) any defense based upon any legal disability or other defense of any other Borrower or any Affiliated Borrower, or by reason of the cessation or limitation of the liability of any other Borrower or any Affiliated Borrower from any cause (other than full payment of all Obligations), including, without limitation, failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury;
(ii) any defense based upon any legal disability or other defense of any other guarantor or other Person;
(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 Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower or any defect in the formation of any other Borrower or Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower;
(iv) any defense based upon the application by any other Borrower or Affiliated Borrower of the proceeds of the credit facilities or the loans under the Affiliated Financing Documents for purposes other than the purposes represented by such other Borrower or Affiliated Borrower to Administrative Agent and Lenders or intended or understood by Administrative Agent and Lenders or such Borrower;
(v) any defense based on such Borrower's ’s rights, under statute or otherwise, to require Administrative Agent and/or any applicable Lender(s) to xxx any other Borrower or Affiliated Borrower or otherwise to exhaust its rights and remedies against any other Borrower or Affiliated Borrower or any other Person or against any collateral before seeking to enforce its right to require such Borrower to satisfy the Obligations of any other Borrower or Affiliated Borrower;
(vi) any defense based on Administrative Agent's ’s or any Lender's ’s failure at any time to require strict performance by any Borrower of any provision of the Financing Documents or by any Affiliated Borrower of any provisions of the Affiliated Financing Documents. Such Borrower agrees that no such failure shall waive, alter or diminish any right of Administrative Agent and/or any applicable Lender(s) thereafter to demand strict compliance and performance therewith. Nothing contained herein shall prevent Administrative Agent and/or any applicable Lender(s) from foreclosing on any Lien, or exercising any rights available to Administrative Agent and/or any applicable Lender(s) thereunder, and the exercise of any such rights shall not constitute a legal or equitable discharge of such Borrower;
(vii) any defense arising from any act or omission of Administrative Agent and/or any applicable Lender(s) which changes the scope of such Borrower's ’s risks hereunder, but the foregoing shall not limit any Credit Party from asserting claims based on breaches of this Agreement or willful misconduct by Administrative Agent and/or any applicable Lender;
(viii) any defense based upon Administrative Agent's ’s or any Lender's ’s election of any remedy against such Borrower or any other Borrower or Affiliated Borrower or any of them; any defense based on the order in which Administrative Agent and/or any Lender(s) enforces its remedies;
(ix) any defense based on (A) Administrative Agent's ’s or any applicable Lender's ’s surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Administrative Agent's ’s or any applicable Lender's ’s abstaining from taking advantage of or realizing upon any Lien or other Guarantee, and (C) any impairment of collateral securing the Obligations, including, without limitation, Administrative Agent's ’s or any applicable Lender's ’s failure to perfect or maintain a Lien in such collateral;
(x) any defense based upon Administrative Agent's ’s or any Lender's ’s failure to disclose to such Borrower any information concerning any other Borrower's ’s or Affiliated Borrower's ’s financial condition or any other circumstances bearing on any other Borrower's ’s or Affiliated Borrower's ’s ability to pay the Obligations;
(xi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal;
(xii) any defense based upon Administrative Agent's ’s and/or any Lender's ’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Bankruptcy Code §1111(b)(2) or any successor statute;
(xiii) any defense based upon any borrowing or any grant of a security interest under Bankruptcy Code §364;
(xiv) any defense based on Administrative Agent's ’s and/or any Lender's ’s failure to be diligent or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations;
(xv) except as otherwise expressly set forth herein: notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase such Borrower's ’s risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of any other Borrower's ’s receivership or bankruptcy and all other notices and demands to which suchsuch Borrower might otherwise be entitled (and agrees the same shall not have to be made on the other Borrower as a condition precedent to such Borrower’s obligations hereunder);
(xvi) any defense based on errors and omissions by Administrative Agent and/or any Lender in connection with its administration of the credit facilities or the loans made under the Affiliated Financing Documents;
(xvii) any defense based on application of fraudulent conveyance or transfer law or shareholder distribution law to any of the Obligations or the security therefor;
(xviii) any defense based on Administrative Agent’s and/or any Lender’s failure to seek relief from stay or adequate protection in any other Borrower’s or Affiliated Borrower’s bankruptcy proceeding or any other act or omission by Administrative Agent and/or any Lender which impairs such Borrower’s prospective subrogation rights;
(xix) any defense based on legal prohibition of Administrative Agent’s and/or any Lender’s acceleration of the maturity of the Obligations during the occurrence of an Event of Default or any other legal prohibition on enforcement of any other right or remedy of Administrative Agent and/or any Lender with respect to the Obligations and the security therefor;
(xx) any defense available to a surety under applicable law; and
(xxi) the benefit of any statute of limitations affecting the liability of such Borrower hereunder or the enforcement hereof.
(c) Each Borrower further agrees that its obligations hereunder shall not be impaired in any manner whatsoever by any bankruptcy, extensions, moratoria or other relief granted to any other Borrower or Affiliated Borrower pursuant to any statute presently in force or hereafter enacted.
(d) Each Borrower authorizes Administrative Agent and each Lender to exercise, in its sole discretion, any right, remedy or combination thereof which may then be available to Administrative Agent or such Lender, since it is such Borrower’s intent that the Obligations be absolute, independent and unconditional obligations of such Borrower under all circumstances. Notwithstanding any foreclosure of any Lien with respect to any or all of any property securing the Obligations, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each Borrower shall remain bound under such Borrower’s Guarantee of the Obligations directly incurred by any other Borrower or Affiliated Borrower.
(e) This Agreement is a primary and original obligation of each of the Borrowers and each of the Borrowers shall be liable for all existing and future Obligations of any other Borrower or Affiliated Borrower as fully as if such Obligations were directly incurred by such Borrower.
Appears in 1 contract
Samples: Credit Agreement (Cyberonics Inc)
Guarantor Provisions. (a) Each Borrower, as joint and several primary obligor of the Obligations directly incurred by any other Borrower or by any Affiliated Borrower, authorizes Administrative Agent and Lenders, without giving notice to such Borrower or to any other Borrower or any Affiliated Borrower (to the extent permitted hereunder or under any Affiliated Financing Document) or obtaining such Borrower's consent or any other Borrower's or Affiliated Borrower's consent (to the extent permitted hereunder or under any Affiliated Financing Document) and without affecting the liability of such Borrower for the Obligations directly incurred by the other Borrower or Affiliated Borrower, from time to time to:
(i) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, liquidate, discharge the performance of, decline to enforce, or release all or any of the Obligations; grant other indulgences to any Borrower in respect thereof; or modify in any manner any documents relating to the Obligations;
(ii) declare all Obligations due and payable upon the occurrence and during the continuance of an Event of Default;
(iii) take and hold security for the performance of the Obligations of any Borrower and exchange, enforce, waive and release any such security;
(iv) release, surrender or exchange any deposits or other property securing the Obligations or on which Administrative Agent and/or any applicable Lender(s) at any time may have a Lien; release, substitute or add any one or more endorsers or guarantors of the Obligations of any other Borrower or Affiliated Borrower or such Borrower; or compromise, settle, renew, extend the time for payment, discharge the performance of, decline to enforce, or release all or any obligations of any such endorser or guarantor or other Person who is now or may hereafter be liable on any Obligations or release, surrender or exchange any deposits or other property of any such Person;
(v) accept partial payments, apply payments received by Administrative Agent and/or any applicable Lender(s) from any Borrower or any Affiliated Borrower to any Obligations, in such order as Administrative Agent shall determine, in its sole discretion; and
(vi) subject to the provisions hereof, assign this Agreement in whole or in part.
(b) Each Borrower, as a primary, joint and several obligor with respect to the Obligations directly incurred by any other Borrower or any Affiliated Borrower, waives:
(i) any defense based upon any legal disability or other defense of any other Borrower or any Affiliated Borrower, or by reason of the cessation or limitation of the liability of any other Borrower or any Affiliated Borrower from any cause (other than full payment of all Obligations), including, without limitation, failure of consideration, breach of warranty, statute of frauds, statute of limitations, accord and satisfaction, and usury;
(ii) any defense based upon any legal disability or other defense of any other guarantor or other Person;
(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 Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower or any defect in the formation of any other Borrower or Affiliated Borrower or any principal of any other Borrower or Affiliated Borrower;
(iv) any defense based upon the application by any other Borrower or Affiliated Borrower of the proceeds of the credit facilities or the loans under the Affiliated Financing Documents for purposes other than the purposes represented by such other Borrower or Affiliated Borrower to Administrative Agent and Lenders or intended or understood by Administrative Agent and Lenders or such Borrower;
(v) any defense based on such Borrower's rights, under statute or otherwise, to require Administrative Agent and/or any applicable Lender(s) to xxx any other Borrower or Affiliated Borrower or otherwise to exhaust its rights and remedies against any other Borrower or Affiliated Borrower or any other Person or against any collateral before seeking to enforce its right to require such Borrower to satisfy the Obligations of any other Borrower or Affiliated Borrower;
(vi) any defense based on Administrative Agent's or any Lender's failure at any time to require strict performance by any Borrower of any provision of the Financing Documents or by any Affiliated Borrower of any provisions of the Affiliated Financing Documents. Such Borrower agrees that no such failure shall waive, alter or diminish any right of Administrative Agent and/or any applicable Lender(s) thereafter to demand strict compliance and performance therewith. Nothing contained herein shall prevent Administrative Agent and/or any applicable Lender(s) from foreclosing on any Lien, or exercising any rights available to Administrative Agent and/or any applicable Lender(s) thereunder, and the exercise of any such rights shall not constitute a legal or equitable discharge of such Borrower;
(vii) any defense arising from any act or omission of Administrative Agent and/or any applicable Lender(s) which changes the scope of such Borrower's risks hereunder, but the foregoing shall not limit any Credit Party from asserting claims based on breaches of this Agreement or willful misconduct by Administrative Agent and/or any applicable Lender;
(viii) any defense based upon Administrative Agent's or any Lender's election of any remedy against such Borrower or any other Borrower or Affiliated Borrower or any of them; any defense based on the order in which Administrative Agent and/or any Lender(s) enforces its remedies;
(ix) any defense based on (A) Administrative Agent's or any applicable Lender's surrender, release, exchange, substitution, dealing with or taking any additional collateral, (B) Administrative Agent's or any applicable Lender's abstaining from taking advantage of or realizing upon any Lien or other Guarantee, and (C) any impairment of collateral securing the Obligations, including, without limitation, Administrative Agent's or any applicable Lender's failure to perfect or maintain a Lien in such collateral;
(x) any defense based upon Administrative Agent's or any Lender's failure to disclose to such Borrower any information concerning any other Borrower's or Affiliated Borrower's financial condition or any other circumstances bearing on any other Borrower's or Affiliated Borrower's ability to pay the Obligations;
(xi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal;
(xii) any defense based upon Administrative Agent's and/or any Lender's election, in any proceeding instituted under the Bankruptcy Code, of the application of Bankruptcy Code §1111(b)(2) or any successor statute;
(xiii) any defense based upon any borrowing or any grant of a security interest under Bankruptcy Code §364;
(xiv) any defense based on Administrative Agent's and/or any Lender's failure to be diligent or to satisfy any other standard imposed on a secured party, in exercising rights with respect to collateral securing the Obligations;
(xv) except as otherwise expressly set forth herein: notice of acceptance hereof; notice of the existence, creation or acquisition of any Obligation; notice of any Event of Default; notice of the amount of the Obligations outstanding from time to time; notice of any other fact which might increase such Borrower's risk; diligence; presentment; demand of payment; protest; filing of claims with a court in the event of any other Borrower's receivership or bankruptcy and all other notices and demands to which suchAffiliated
Appears in 1 contract
Samples: Credit and Security Agreement (American Retirement Corp)
