Common use of Joint and Several Liability of Borrower Clause in Contracts

Joint and Several Liability of Borrower. (a) Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by Administrative Agent and Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for the Obligations. (b) Each Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrower, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Section 2.23), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each Borrower without preferences or distinction among them. Accordingly, each Borrower hereby waives any and all suretyship defenses that would otherwise be available to such Borrower under applicable law. (c) If and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due, whether upon maturity, acceleration, or otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrower will make such payment with respect to, or perform, such Obligations until such time as all of the Obligations are paid in full, and without the need for demand, protest, or any other notice or formality. (d) The Obligations of each Borrower under the provisions of this Section 2.23 constitute the absolute and unconditional, full recourse Obligations of each Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 2.23(d)) or any other circumstances whatsoever. (e) Without limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, each Borrower hereby waives presentments, demands for performance, protests and notices, including notices of acceptance of its joint and several liability, notice of any portion of the Term Loans issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Administrative Agent or Lenders under or in respect of any of the Obligations, any right to proceed against any other Borrower or any other Person, to proceed against or exhaust any security held from any other Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Borrower, any other Person, or any collateral, to pursue any other remedy in Administrative Agent or any Lender’s power whatsoever, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement), any right to assert against Administrative Agent or any Lender, any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have against any other Borrower or any other party liable to Administrative Agent or any Lender, any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor, and any right or defense arising by reason of any claim or defense based upon an election of remedies by Administrative Agent or any Lender including any defense based upon an impairment or elimination of such Borrower’s rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without limiting the generality of the foregoing, each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Administrative Agent or Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Administrative Agent or Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of Administrative Agent or any Lender with respect to the failure by any Borrower to comply with any of its respective Obligations, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.23 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.23, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this Section 2.23 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Section 2.23 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower, Administrative Agent or any Lender. Each Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall operate to toll the statute of limitations as to each Borrower. Each Borrower waives any defense based on or arising out of any defense of any Borrower or any other Person, other than payment of the Obligations to the extent of such payment, based on or arising out of the disability of any Borrower or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Administrative Agent by one or more judicial or non-judicial sales or other dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Administrative Agent or any Lender may have against any Borrower or any other Person, or any security, in each case, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Obligations have been paid. (f) Each Borrower represents and warrants to Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of Borrower’s financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations. (g) The provisions of this Section 2.23 are made for the benefit of Administrative Agent, each Lender, and their respective successors and assigns, and may be enforced by it or them from time to time against any or all Borrowers as often as occasion therefor may arise and without requirement on the part of Administrative Agent, any Lender, or any of their successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any Borrower or to exhaust any remedies available to it or them against any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.23 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.23 will forthwith be reinstated in effect, as though such payment had not been made. (h) Each Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement of the provisions of this Section 2.23, including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Administrative Agent or any Lender against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to Administrative Agent or any Lender hereunder are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Administrative Agent and the Lenders, and shall forthwith be paid to Administrative Agent to be credited and applied to the Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this Agreement thereafter arising. Notwithstanding anything to the contrary contained in this Agreement, no Borrower may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to this Agreement or otherwise. (i) Each Borrower hereby acknowledges and affirms that it understands that to the extent the Obligations are secured by Real Property (as such term is defined in the Security Agreement) located in California, Borrower shall be liable for the full amount of the liability hereunder notwithstanding the foreclosure on such Real Property by trustee sale or any other reason impairing such Borrower’s right to proceed against any other Loan Party. In accordance with Section 2856 of the California Civil Code or any similar laws of any other applicable jurisdiction, each Borrower hereby waives until such time as the Obligations have been paid in full: (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Borrower by reason of Sections 2787 to 2855, inclusive, 2899, and 3433 of the California Civil Code or any similar laws of any other applicable jurisdiction; (ii) all rights and defenses that Borrower may have because the Obligations are secured by Real Property (as such term is defined in the Security Agreement) located in California, meaning, among other things, that: (A) Administrative Agent and the Lenders may collect from Borrower without first foreclosing on any real or personal property collateral pledged by any Loan Party, and (B) if Administrative Agent, on behalf of the Lenders, forecloses on any Real Property (as such term is defined in the Security Agreement) pledged by any Loan Party, (1) the amount of the Obligations 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, and (2) Administrative Agent and the Lenders may collect from the Loan Parties even if, by foreclosing on the Real Property (as such term is defined in the Security Agreement), Administrative Agent or the Lenders have destroyed or impaired any right Borrower may have to collect from any other Loan Party, it being understood that this is an unconditional and irrevocable waiver of any rights and defenses Borrower may have because the Obligations are secured by Real Property (including any rights or defenses based upon Sections 580a, 580d, or 726 of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction); and (iii) all rights and defenses arising out of an election of remedies by Administrative Agent and the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Obligations, has destroyed Borrower’s rights of subrogation and reimbursement against any other Loan Party by the operation of Section 580d of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction or otherwise.

Joint and Several Liability of Borrower. During any period in which more than one Person is signatory hereto as a “Borrower,” the following shall apply: (a) Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by Administrative Agent and the Lenders under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other each Borrower to accept joint and several liability for the Obligationsobligations of each of them. (b) Each Borrower hereby agrees such Borrower is, and each such Borrower’s heirs, personal representatives, successors and assigns are, jointly and severallyseverally liable for, and hereby irrevocably absolutely and unconditionally acceptsguarantees to Administrative Agent and Lenders and their respective successors and assigns, not merely as a surety but also as a co-debtorthe full and prompt payment (whether at stated maturity, joint and several liability with the other Borrower, with respect to the payment by acceleration or otherwise) and performance of of, all of the Indebtedness and all other Obligations (including any Obligations arising under this Section 2.23)of Borrower, it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each Borrower without preferences or distinction among them. AccordinglyEach Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, each Borrower hereby waives any that its obligations under this Section 12.20 shall not be discharged until payment and all suretyship defenses performance, in full, of the Obligations has occurred, and that would otherwise its obligations under this Section 12.20 shall be available to such Borrower under applicable lawabsolute and unconditional. (c) If and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations hereunder as and when due, whether upon maturity, acceleration, or otherwise, due or to perform any of the such Obligations in accordance with the terms thereof, then in each such event the event, each other Borrower will make such payment with respect to, or perform, such Obligations until such time as all of the Obligations are paid in full, and without the need for demand, protest, or any other notice or formalityObligation. (d) The Obligations guaranty obligations of each Borrower under the provisions of this Section 2.23 12.20 constitute the absolute and unconditional, full recourse Obligations obligations of each Borrower such Borrower, enforceable against each Borrower it to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 2.23(d)) or any other circumstances whatsoever, including the following: (A) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document, the Environmental Indemnity Agreement, or any other agreement, document or instrument to which any other Borrower is or may become a party; LOAN AGREEMENT – Page 98[Heritage Wxxxx] (B) the absence of any action to enforce this Agreement (including this Section 12.20) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof; (C) the existence, value or condition of, or failure to perfect any lien or any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security); (D) the insolvency of any other Borrower; (E) the institution of any proceeding under the Federal Bankruptcy Code, or any similar proceeding, by or against a Borrower or Administrative Agent’s election in any such proceeding of the application of Section 1111(b)(2) of the Federal Bankruptcy Code; (F) any borrowing or grant of a security interest by any Borrower as debtor-in-possession, under Section 364 of the Federal Bankruptcy Code; (G) the disallowance, under Section 502 of the Federal Bankruptcy Code, of all or any portion of Administrative Agent’s claim(s) for repayment of any of the Obligations; or (H) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor other than the payment and performance, in full, of the Obligations. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder. (e) Without limiting the generality of the foregoing and except Except as otherwise expressly provided in this Agreementherein, each Borrower hereby waives presentments, demands for performance, protests and notices, including notices notice of acceptance of its joint and several liability, notice of any portion of the Term Loans issued under or pursuant to this Agreement, notice of the occurrence of any Default, Potential Default or Event of Default, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement), notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations or of any demand for any payment under this Agreement (except to the extent demand is expressly required to be given pursuant to the terms of this Agreement), notice of any action at any time taken or omitted by the Administrative Agent or Lenders any Lender under or in respect of any of the Obligations, any right to proceed against any other Borrower or any other Person, to proceed against or exhaust any security held from any other Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Borrower, any other Person, or any collateral, to pursue any other remedy in Administrative Agent or any Lender’s power whatsoeverObligations hereunder, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement), any right to assert against Administrative Agent or any Lender, any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have against any other Borrower or any other party liable to Administrative Agent or any Lender, any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor, and any right or defense arising by reason of any claim or defense based upon an election of remedies by Administrative Agent or any Lender including any defense based upon an impairment or elimination of such Borrower’s rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without limiting the generality of the foregoing, each Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the ObligationsObligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Administrative Agent or the Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Administrative Agent or Lenders in respect of any of the ObligationsObligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the such Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or any failure to act on the part of the Administrative Agent or any Lender with respect to the failure by any Borrower to comply with any of its respective ObligationsLender, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, thereunder which might, but for the provisions of this Section 2.23 12.20, afford grounds for terminating, discharging or relieving any such Borrower, in whole or in part, from any of its Obligations obligations under this Section 2.2312.20, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations obligations of each such Borrower under this Section 2.23 12.20 shall not be discharged except by performance and then only to the extent of such performance. The Obligations obligations of each Borrower under this Section 2.23 12.20 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower, Administrative Agent or any Lender. The joint and several liability of Borrower hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower, Administrative Agent or any Lender. (f) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document or the Environmental Indemnity Agreement, and except as set forth in Section 12.20(j), each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower waives, acknowledges and agrees that this subordination is intended to the fullest extent permitted by law, the benefit of any statute of limitations affecting its Administrative Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll any statute enforceability of limitations as to any Borrower shall operate to toll the statute of limitations as to each Borrower. Each Borrower waives any defense based on or arising out of any defense of any Borrower or any other Personthis Section 12.20, other than payment and that Administrative Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the Obligations to the extent of such payment, based on or arising out of the disability of any Borrower or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Administrative Agent by one or more judicial or non-judicial sales or other dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy waivers and agreements set forth in this Section 12.20. (g) If Administrative Agent or any Lender may, under applicable Law, proceed to realize its benefits under any of the Loan Documents or the Environmental Indemnity Agreement giving Administrative Agent or such Lender a lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Administrative Agent or any Lender may, at its sole option, determine which of its remedies or rights it may have pursue without affecting any of its rights and remedies under this Section 12.20. If, in the exercise of any of its rights and remedies, Administrative Agent or any Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable Laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Administrative Agent or such Lender and waives any claim based upon such action, even if such action by Administrative Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Administrative Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Administrative Agent or any security, in each case, without affecting or impairing in any way the liability of Lender to seek a deficiency judgment against any Borrower hereunder except shall not impair any other Borrower’s obligation to pay the extent the Obligations have been paid. (f) Each Borrower represents and warrants to Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment full amount of the Obligations. Each Borrower further represents and warrants to In the event Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents. Each Borrower hereby covenants that , Administrative Agent or such Borrower will continue to keep informed of Borrower’s financial condition and of Lender may bid all other circumstances which bear upon or less than the risk of nonpayment or nonperformance amount of the Obligations and the amount of such bid need not be paid by Administrative Agent or such Lender but shall be credited against the Obligations.. The amount of the successful bid at any such sale, whether Administrative Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 12.20, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Administrative Agent or any Lenders might otherwise be entitled but for such bidding at any such sale. LOAN AGREEMENT – Page 100[Heritage Wxxxx] (gh) The provisions of this Section 2.23 12.20 are made for the benefit of the Administrative Agent, each Lender, the Lenders and their respective successors and assigns, and may be enforced by it or them any such Person from time to time against any or all Borrowers Borrower as often as occasion therefor may arise and without requirement on the part of Administrative Agent, any Lender, Agent or any of their successors or assigns Lender first to marshal any of its or their claims or to exercise any of its or their rights against any other Borrower or to exhaust any remedies available to it or them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.23 12.20 shall remain in effect until all of the Obligations hereunder shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Administrative Agent or any Lender the Lenders upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.23 12.20 will forthwith be reinstated and in effect, effect as though such payment had not been made. (hi) Each Borrower hereby agrees that it will Borrower’s liability under this Section 12.20 shall be limited to an amount not enforce to exceed as of any date of its rights that arise from determination the existence, payment, performance or enforcement greater of the provisions following: (A) the amount of the Loan allocated to the Project owned by each Borrower as set forth on Schedule 12.20 hereto (with respect to the applicable Project, the “Allocated Loan Amount”); and (B) the amount that could be claimed by Administrative Agent and any Lender from such Borrower under this Section 2.23, including rights 12.20 without rendering such claim voidable or avoidable under Section 548 of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy Chapter 11 of Administrative Agent or any Lender against any Borrower, whether or not such claim, remedy or right arises in equity the Bankruptcy Code or under contractany applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to Administrative Agent or any Lender hereunder are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Administrative Agent and the Lenders, and shall forthwith be paid to Administrative Agent to be credited and applied to the Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this Agreement thereafter arising. Notwithstanding anything to the contrary contained in this Agreement, no Borrower may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including law after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to this Agreement or otherwise. (i) Each Borrower hereby acknowledges and affirms that it understands that to the extent the Obligations are secured by Real Property (as such term is defined in the Security Agreement) located in California, Borrower shall be liable for the full amount of the liability hereunder notwithstanding the foreclosure on such Real Property by trustee sale or any other reason impairing such Borrower’s right to proceed against any other Loan Party. In accordance with Section 2856 of the California Civil Code or any similar laws of any other applicable jurisdiction, each Borrower hereby waives until such time as the Obligations have been paid in full: (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Borrower by reason of Sections 2787 to 2855, inclusive, 2899, and 3433 of the California Civil Code or any similar laws of any other applicable jurisdiction; (ii) all rights and defenses that Borrower may have because the Obligations are secured by Real Property (as such term is defined in the Security Agreement) located in California, meaningtaking into account, among other things, that: (A) Administrative Agent and the Lenders may collect from Borrower without first foreclosing on any real or personal property collateral pledged by any Loan Party, and (B) if Administrative Agent, on behalf of the Lenders, forecloses on any Real Property (as such term is defined in the Security Agreement) pledged by any Loan Party, (1) the amount of the Obligations 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, and (2) Administrative Agent and the Lenders may collect from the Loan Parties even if, by foreclosing on the Real Property (as such term is defined in the Security Agreement), Administrative Agent or the Lenders have destroyed or impaired any right Borrower may have to collect from any other Loan Party, it being understood that this is an unconditional and irrevocable waiver of any rights and defenses Borrower may have because the Obligations are secured by Real Property (including any rights or defenses based upon Sections 580a, 580d, or 726 of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction); and (iii) all rights and defenses arising out of an election of remedies by Administrative Agent and the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Obligations, has destroyed Borrower’s rights right of subrogation contribution and reimbursement against any indemnification from each other Loan Party by the operation of Borrower under Section 580d of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction or otherwise12.20(j) below.

Joint and Several Liability of Borrower. (a) Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations accommodation to be provided by Administrative Agent and Lenders Lender under this Agreementthe Loan Documents, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other each Borrower to accept joint and several liability for the Obligationsobligations of each of them. (b) Each Subject to the terms of the Loan Documents, each Borrower hereby agrees such Xxxxxxxx is, and each such Borrower’s successors and assigns are, jointly and severallyseverally liable for, and hereby irrevocably absolutely and unconditionally accepts, not merely as a surety but also as a co-debtor, joint guarantees to Lender and several liability with the other Borrower, its respective successors and assigns with respect to the obligations under the Loan, the full and prompt payment and performance (whether at stated maturity, by acceleration or otherwise), of all of the Obligations (including any Obligations arising under this Section 2.23)obligations of each other Borrower, it being the intention of the parties hereto that all the Obligations obligations shall be the joint and several obligations of each Borrower without preferences or distinction among them. AccordinglyEach Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, each Borrower hereby waives any that, subject to the terms of the Loan Documents, its obligations under this Section 9.20 shall not be discharged until payment and all suretyship defenses performance, in full, of the obligations has occurred, and that would otherwise its obligations under this Section 9.20 shall be available to such Borrower under applicable lawabsolute and unconditional. (c) If and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations Indebtedness as and when due, whether upon maturity, acceleration, due or otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each such event the event, each other Borrower will make such payment with respect to, or perform, such Obligations until such time as all of to the Obligations are paid in full, and without the need for demand, protest, or any other notice or formalityIndebtedness. (d) The Obligations of each Borrower under the provisions of this Section 2.23 constitute the absolute and unconditional, full recourse Obligations of each Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 2.23(d)) or any other circumstances whatsoever. (e) Without limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, each Each Borrower hereby waives presentmentsany right it may now or hereafter have to require Lender, demands for performance, protests and notices, including notices of acceptance of its joint and several liability, notice as a condition to the exercise of any portion of the Term Loans issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new or additional Obligations remedy or other financial accommodations right against Borrower hereunder or of under any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Administrative Agent or Lenders under or in respect of any of the Obligations, any right other Loan Document: (i) to proceed against any other Borrower or any other Personperson, to proceed or against or exhaust any security held from other collateral assigned Lender by any other Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Borrower, any other Person, or any collateral, person; (ii) to pursue any other right or remedy in Administrative Agent or any Lender’s power whatsoeverpower; or (iii) to make or give (except as otherwise expressly provided in the Loan Documents) any presentment, demand, protest, notice of dishonor, notice of protest, notice of intention to accelerate, notice of acceleration, or other demand or notice of any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement)any Obligations, any right to assert against Administrative Agent Indebtedness or any Lender, collateral for any Obligations. (e) Each Borrower hereby waives any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower it may now or at any time hereafter have against that relates to: (i) any disability or other defense of any other Borrower or any other party liable to Administrative Agent person; (ii) the cessation, from any cause other than full payment and performance, of the obligations of any other Borrower or any Lender, any defense, set-off, counterclaim, or claim, other person; (iii) the application of the proceeds of any kind Indebtedness, by any other Borrower or natureany other person, arising for purposes other than the purposes represented to Borrower by any other Borrower or otherwise intended or understood by Borrower; (iv) any act or omission by Lender which directly or indirectly from results in or contributes to the present release of any other Borrower or future any other person or any collateral for any obligations; (v) the unenforceability or invalidity of any collateral assignment or guaranty with respect to any obligations, or the lack of perfection, sufficiency, validity, perfection or enforceability continuing perfection or lack of the Obligations priority of any lien which secures any obligations: (vi) any failure of Lender to marshal assets in favor of Borrower or any security therefor, and other person; (vii) any right or defense arising by reason modification of any claim obligations of any other Borrower, including any renewal, extension, acceleration or defense based upon increase in interest rate; (viii) any and all rights and defenses arising out of an election of remedies by Administrative Agent or any Lender including any defense based upon Xxxxxx, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, may have an impairment or elimination of such adverse effect on Borrower’s rights of subrogation, reimbursement, contribution, subrogation and reimbursement against the principal; (ix) any law which provides that the obligation of a surety or indemnity of such Borrower against any guarantor must neither be larger in amount nor in other Borrower. Without limiting the generality respects more burdensome than that of the foregoing, each Borrower hereby assents to, and waives notice of, principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation; (x) any extension failure of Lender to file or postponement of the time for the payment of enforce a claim in any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent bankruptcy or other action or acquiescence by Administrative Agent or Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Administrative Agent or Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of Administrative Agent or any Lender with respect to the failure by any Borrower to comply with any of its respective Obligations, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.23 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.23, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this Section 2.23 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Section 2.23 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrowerperson; (xi) the election by Xxxxxx, Administrative Agent or in any Lender. Each Borrower waives, to the fullest extent permitted by law, the benefit bankruptcy proceeding of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall operate to toll the statute of limitations as to each Borrower. Each Borrower waives any defense based on or arising out of any defense of any Borrower or any other Personperson, other than payment of the Obligations to the extent of such payment, based on or arising out of the disability of any Borrower or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Administrative Agent by one or more judicial application or non-judicial sales application of Section 1111(b)(2) of the United States Bankruptcy Code; (xii) any extension of credit or other dispositions, whether or not every aspect the grant of any such sale is commercially reasonable lien under Section 364 of the United States Bankruptcy Code; (xiii) any use of cash collateral under Section 363 of the United States Bankruptcy Code; or otherwise fails (xiv) any agreement or stipulation with respect to comply with applicable law or may exercise any other right or remedy Administrative Agent or any Lender may have against any Borrower or any other Person, or any security, in each case, without affecting or impairing the provision of adequate protection in any way the liability bankruptcy proceeding of any Borrower hereunder except to the extent the Obligations have been paid. (f) Each Borrower represents and warrants to Administrative Agent and Lenders that such Borrower is currently informed of the financial condition of Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligationsperson. Each Borrower further represents waives any and warrants to Administrative Agent and Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of Borrower’s financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations. (g) The provisions of this Section 2.23 are made for the benefit of Administrative Agent, each Lender, and their respective successors and assigns, and may be enforced by it or them from time to time against any or all Borrowers as often as occasion therefor may arise and without requirement on the part of Administrative Agent, any Lender, or any of their successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any Borrower or to exhaust any remedies available to it or them against any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.23 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.23 will forthwith be reinstated in effect, as though such payment had not been made. (h) Each Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement of the provisions of this Section 2.23, including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Administrative Agent or any Lender against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until such time as all of the Obligations have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments to Administrative Agent or any Lender hereunder are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Administrative Agent and the Lenders, and shall forthwith be paid to Administrative Agent to be credited and applied to the Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this Agreement thereafter arising. Notwithstanding anything to the contrary contained in this Agreement, no Borrower may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed Borrower”), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to this Agreement or otherwise. (i) Each Borrower hereby acknowledges and affirms that it understands that to the extent the Obligations are secured by Real Property (as such term is defined in the Security Agreement) located in California, Borrower shall be liable for the full amount of the liability hereunder notwithstanding the foreclosure on such Real Property by trustee sale or any other reason impairing such Borrower’s right to proceed against any other Loan Party. In accordance with Section 2856 of the California Civil Code or any similar laws of any other applicable jurisdiction, each Borrower hereby waives until such time as the Obligations have been paid in full: (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Borrower by reason of Sections 2787 to 2855, inclusive, 2899, and 3433 of the California Civil Code or any similar laws of any other applicable jurisdiction; (ii) all rights and defenses that Borrower it may have because the Obligations are another Borrower’s debt is secured by Real Property (as such term is defined in the Security Agreement) located in California, meaningreal property; this means, among other things, that: : (A1) Administrative Agent and the Lenders Lender may collect from Borrower without first foreclosing on any real or personal property collateral pledged by any Loan Party, and other Borrower; (B2) if Administrative Agent, on behalf of the Lenders, Lender forecloses on any Real Property (as such term is defined in the Security Agreement) real property collateral pledged by any Loan Partyanother Borrower, then (1A) the amount of the Obligations debt 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, and (2B) Administrative Agent and the Lenders Lender may collect from the Loan Parties Borrower even ifif Lender, by foreclosing on the Real Property (as such term is defined in the Security Agreement)real property collateral, Administrative Agent or the Lenders have has destroyed or impaired any right Borrower may have to collect from any other Loan Party, it being understood that this another Borrower. The foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses Borrower may have because the Obligations are another Borrower’s debt is secured by Real Property (real property. Without limiting the generality of the foregoing or any other provision hereof, each Borrower further expressly waives to the extent permitted by law any and all rights and defenses, including without limitation any rights of subrogation, reimbursement, indemnification and contribution, which might otherwise be available to it under applicable law. (f) Each Borrower hereby waives, until such time as the Loan is fully paid: (i) any right of subrogation against any other Borrower that relates to any obligations; (ii) any right to enforce any remedy Borrower may now or defenses based upon Sections 580a, 580d, hereafter have against any other Borrower that relates to any obligations; and (iii) any right to participate in any collateral now or 726 of the California Code of Civil Procedure or hereafter assigned to Lender with respect to any similar laws obligations of any other applicable jurisdiction)Borrower. (g) Each Borrower warrants and agrees: (i) that Xxxxxx would not make the Loan but for the Loan Documents; and (ii) that Borrower has not relied, and will not rely, on any representations or warranties by Lender to Borrower with respect to the creditworthiness of any other Borrower or the prospects of repayment of any Indebtedness from sources other than Borrower’s Property; (iii) all rights that Borrower has established and/or will establish adequate means of obtaining from each other Borrower on a continuing basis financial and defenses arising out other information pertaining to the business operations, if any, and financial condition of an election of remedies by Administrative Agent and the Lenders, even though each other Borrower; (iv) that election of remedies, such as a nonjudicial foreclosure Borrower assumes full responsibility for keeping informed with respect to each other Borrower’s business operations, if any, and financial condition; (v) that Lender shall have no duty to disclose or report to Borrower any information now or hereafter known to Lender with respect to any other Borrower, including, without limitation, any information relating to any other Borrower’s business operations or financial condition; and (vi) that Borrower is familiar with the terms and conditions of the Loan Documents executed by each other Borrower and consents to all provisions thereof. (h) Until the Loan has been fully paid, each Borrower hereby agrees that (i) all existing and future indebtedness and other obligations of each other Borrower to Borrower (collectively, the “Subordinated Debt”) shall be and are hereby subordinated to all Indebtedness of each other Borrower, and the payment thereof is hereby deferred in right of payment to the prior payment of all Indebtedness; (ii) Borrower shall not collect or receive any cash or non-cash payments on any Subordinated Debt or transfer all or any portion of the Subordinated Debt; and (iii) in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, another Borrower with respect to any Subordinated Debt is received by Borrower, such payment or distribution shall be held in trust and immediately paid over to Lender, is hereby assigned to Lender as security for the ObligationsIndebtedness, and shall be held by Lender in an interest bearing account until all Indebtedness has destroyed Borrower’s been fully paid. (i) Each Borrower warrants that all of the waivers in this Section 9.20 are made with full knowledge of their significance, and of the fact that events giving rise to any defense or other benefit waived by Borrower may destroy or impair rights of subrogation and reimbursement which Borrower would otherwise have against Lender, any other Loan Party Borrower and other persons, or against collateral. Each Borrower agrees that all such waivers are reasonable under the circumstances and further agrees that, if any such waiver is determined (by a court of competent jurisdiction) to be contrary to any law or public policy, the operation of Section 580d of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction or otherwisewaivers herein shall nonetheless remain in full force and effect.

Joint and Several Liability of Borrower. (a) Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by Administrative Agent and Lenders Lender under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for the Obligations. (b) Each Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrower, with respect to the payment and performance of all of the Obligations (including including, without limitation, any Obligations arising under this Section 2.232.12), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each Person composing Borrower without preferences or distinction among them. Accordingly, each Borrower hereby waives any and all suretyship defenses that would otherwise be available to such Borrower under applicable law. (c) If and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due, whether upon maturity, acceleration, or otherwise, due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Persons composing Borrower will make such payment with respect to, or perform, such Obligations until such time as all of the Obligations are paid in full, and without the need for demand, protest, or any other notice or formalityObligation. (d) The Obligations of each Person composing Borrower under the provisions of this Section 2.23 2.12 constitute the absolute and unconditional, full recourse Obligations of each Person composing Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (against any other than this Section 2.23(d)) Person composing Borrower or any other circumstances whatsoever. (e) Without limiting the generality of the foregoing and except Except as otherwise expressly provided in this Agreement, each Person composing Borrower hereby waives presentments, demands for performance, protests and notices, including notices notice of acceptance of its joint and several liability, notice of any portion Advances or Letters of the Term Loans Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Administrative Agent or Lenders Lender under or in respect of any of the Obligations, any right to proceed against any other Borrower or any other Person, to proceed against or exhaust any security held from any other Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Borrower, any other Person, or any collateral, to pursue any other remedy in Administrative Agent or any Lender’s power whatsoever, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except except, in each case, as otherwise provided in this Agreement), any right to assert against Administrative Agent or any Lender, any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have against any other Borrower or any other party liable to Administrative Agent or any Lender, any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor, and any right or defense arising by reason of any claim or defense based upon an election of remedies by Administrative Agent or any Lender including any defense based upon an impairment or elimination of such Borrower’s rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without limiting the generality of the foregoing, each Each Person composing Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Administrative Agent or Lenders Lender at any time or times in respect of any default by any Person composing Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Administrative Agent or Lenders Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Person composing Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of Administrative Agent or any Lender with respect to the failure by any other Person composing Borrower to comply with any of its respective Obligations, including including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.23 2.12 afford grounds for terminating, discharging or relieving any other Person composing Borrower, in whole or in part, from any of its Obligations under this Section 2.232.12, it being the intention of each Person composing Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each such Person composing Borrower under this Section 2.23 2.12 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Person composing Borrower under this Section 2.23 2.12 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower, Administrative Agent Person composing Borrower or any Lender. Each The joint and several liability of the Persons composing Borrower waiveshereunder shall continue in full force and effect notwithstanding any absorption, to the fullest extent permitted by lawmerger, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall operate to toll the statute of limitations as to each Borrower. Each Borrower waives any defense based on or arising out of any defense of any Borrower amalgamation or any other Personchange whatsoever in the name, other than payment constitution or place of formation of any of the Obligations to the extent of such payment, based on or arising out of the disability of any Persons composing Borrower or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Administrative Agent by one or more judicial or non-judicial sales or other dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Administrative Agent or any Lender may have against any Borrower or any other Person, or any security, in each case, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Obligations have been paidLender. (f) Each Person composing Borrower represents and warrants to Administrative Agent and Lenders Lender that such Borrower is currently informed of the financial condition of each other Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Person composing Borrower further represents and warrants to Administrative Agent and Lenders Lender that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Person composing Borrower hereby covenants that such Borrower will continue to keep informed of each other Borrower’s financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations. (g) Each of the Persons composing Borrower waives all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Lender’s rights of subrogation and reimbursement against such Borrower by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise. (h) Each of the Persons composing Borrower waives all rights and defenses that such Borrower may have because the Obligations are secured by Real Property. This means, among other things: (i) Lender may collect from such Borrower without first foreclosing on any Collateral pledged by each other Borrower. (ii) If Lender forecloses on any Real Property Collateral pledged by Borrower: (A) The amount of the Obligations may be reduced only by the price for which that Real Property Collateral is sold at the foreclosure sale, even if such Real Property Collateral is worth more than the sale price. (B) Lender may collect from such Borrower even if Lender, by foreclosing on the Real Property Collateral, has destroyed any right such Borrower may have to collect from each other Borrower. This is an unconditional and irrevocable waiver of any rights and defenses such Borrower may have because the Obligations are secured by Real Property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. (i) The provisions of this Section 2.23 2.12 are made for the benefit of Administrative Agent, each Lender, Lender and their respective its successors and assigns, and may be enforced by it or them from time to time against any or all Borrowers of the Persons composing Borrower as often as occasion therefor may arise and without requirement on the part of Administrative Agent, any Lender, successor, or any of their successors or assigns assign first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Persons composing Borrower or to exhaust any remedies available to it or them against any of the other Persons composing Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.23 2.12 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any of the Persons composing Borrower, or otherwise, the provisions of this Section 2.23 2.12 will forthwith be reinstated in effect, as though such payment had not been made. (hj) Each of the Persons composing Borrower hereby agrees that it will not enforce any of its rights that arise from of contribution or subrogation against the existence, payment, performance other Persons composing Borrower with respect to any liability incurred by it hereunder or enforcement under any of the provisions other Loan Documents, any payments made by it to Lender with respect to any of this Section 2.23, including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Administrative Agent the Obligations or any Lender against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or collateral security solely on account of such claim, remedy or right, unless and therefor until such time as all of the Obligations have been paid in full in cashfull. Any claim which any Borrower may have against any other Borrower with respect to any payments to Administrative Agent or any Lender hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation . (k) Each of the immediately preceding sentencePersons composing Borrower hereby agrees that, such amount shall be held in trust for after the benefit occurrence and during the continuance of Administrative Agent and any Default or Event of Default, the Lenders, and shall forthwith be paid to Administrative Agent to be credited and applied to the Obligations and all other payment of any amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this Agreement thereafter arising. Notwithstanding anything to the contrary contained in this Agreement, no Borrower may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or due with respect to the indebtedness owing by any property or asset of, Borrower to any other Borrower (is hereby subordinated to the “Foreclosed Borrower”), including after prior payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Capital Stock of such Foreclosed Borrower whether pursuant to this Agreement or otherwise. (i) . Each Borrower hereby acknowledges agrees that after the occurrence and affirms that it understands that during the continuance of any Default or Event of Default, such Borrower will not demand, xxx for or otherwise attempt to the extent the Obligations are secured by Real Property (as such term is defined in the Security Agreement) located in California, Borrower shall be liable for the full amount of the liability hereunder notwithstanding the foreclosure on such Real Property by trustee sale or collect any other reason impairing such Borrower’s right to proceed against any other Loan Party. In accordance with Section 2856 of the California Civil Code or any similar laws indebtedness of any other applicable jurisdiction, each Borrower hereby waives owing to such Borrower until such time as the Obligations shall have been paid in full: (i) all rights . If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of subrogationsuch indebtedness, reimbursementsuch amounts shall be collected, indemnificationenforced and received by such Borrower as trustee for the Lender, and contribution and such Borrower shall deliver any other rights and defenses that are or may become available such amounts to Borrower by reason of Sections 2787 Lender for application to 2855, inclusive, 2899, and 3433 of the California Civil Code or any similar laws of any other applicable jurisdiction; (ii) all rights and defenses that Borrower may have because the Obligations are secured by Real Property (as such term is defined in the Security Agreement) located in California, meaning, among other things, that: (A) Administrative Agent and the Lenders may collect from Borrower without first foreclosing on any real or personal property collateral pledged by any Loan Party, and (B) if Administrative Agent, on behalf of the Lenders, forecloses on any Real Property (as such term is defined in the Security Agreement) pledged by any Loan Party, (1) the amount of the Obligations 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, and (2) Administrative Agent and the Lenders may collect from the Loan Parties even if, by foreclosing on the Real Property (as such term is defined in the Security Agreementaccordance with Section 2.3(b), Administrative Agent or the Lenders have destroyed or impaired any right Borrower may have to collect from any other Loan Party, it being understood that this is an unconditional and irrevocable waiver of any rights and defenses Borrower may have because the Obligations are secured by Real Property (including any rights or defenses based upon Sections 580a, 580d, or 726 of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction); and (iii) all rights and defenses arising out of an election of remedies by Administrative Agent and the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Obligations, has destroyed Borrower’s rights of subrogation and reimbursement against any other Loan Party by the operation of Section 580d of the California Code of Civil Procedure or any similar laws of any other applicable jurisdiction or otherwise.