Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations arising under this Agreement, the Notes, and all of the other Loan Documents (collectively, the "Obligations"). In furtherance thereof, each Borrower acknowledges and agrees as follows: (a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the other as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications. (b) To induce the Banks to provide the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Agent and the Banks against, and hold the Agent and Banks harmless from, any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Agent and/or Banks by either Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") arising from or incurred by reason of (i) reliance by the Agent or Banks on any requests or instructions from either Borrower, or (ii) any other action taken by the Agent or Banks in good faith with respect to this Agreement or the other Loan Documents. (c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure Obligations of both Borrowers under the Loan Documents and, in full recognition of that fact, each Borrower consents and agrees that the Agent and Banks may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document: (i) agree with the Borrowers to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon; (ii) agree with the Borrowers to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (iii) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof; (iv) accept partial payments on the Obligations; (v) receive and hold additional security or guaranties for the Obligations or any part thereof; (vi) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Agent, in its sole and absolute discretion may determine; (vii) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof; (viii) settle, release on terms satisfactory to the Agent or Banks or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and (ix) consent to the merger, change or any other restructuring or termination of the corporate existence of either Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations. (d) Upon the occurrence of and during the continuance of any Event of Default, the Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Agent or Banks at any time may have or hold in connection with the Obligations, and in collecting on the Obligations it shall not be necessary for the Agent or Banks to marshal assets in favor of either Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Agent or Banks, in connection with the Agent's or Bank's efforts to obtain repayment of the Obligations, to marshal assets in favor of either Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Agent and Banks may proceed against any Persons and/or collateral in such order as they shall determine in their sole and absolute discretion in connection with the Bank's efforts to obtain repayment of the Obligations. Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and Banks, each Borrower and/or any other Person may deal with each other in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Agent and Banks hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Agent or Banks as a result of the bankruptcy, insolvency or reorganization of either Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either Borrower or any other Person and whether or not either Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Agent or Banks to marshal assets in favor of either of the Borrowers or any other Person, (v) any failure of the Agent or Banks to give notice of sale or other disposition of any Collateral for the Obligations to either Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Agent or Banks to comply in any non-material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Agent or Banks or others that directly or indirectly results in or aids the discharge or release of either Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (ix) any failure of the Agent or Banks to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (x) the election by the Agent or Banks, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding. (e) The Borrowers represent and warrant to the Agent and the Banks that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Agent and the Banks to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower or the other Borrower's properties, whether now known or hereafter known by the Agent or Banks during the life of this Agreement. With respect to any of the Obligations, the Agent or Banks need not inquire into the powers of either Borrower or the officers, employees or other persons acting or purporting to act on such Borrower's behalf. (f) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which either Borrower is a party, with respect to the Obligations, each Borrower hereby waives with respect to the other Borrower and its successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until the Obligations are paid and performed in full. Each Borrower agrees that it shall not have or assert any such rights against the other Borrower or the other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower by the other Borrower (as borrower or in any other capacity) or any other Person until all the Obligations are paid and performed in full. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank and shall not limit or otherwise affect either Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof. (g) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Agent or the Banks or others, or against any Collateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Commercial Loan Agreement (Compass Plastics & Technologies Inc)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications.
(b) To induce Lenders to make the Banks to provide the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Agent Administrative Agent, Lenders and the Banks other Indemnified Parties against, and hold Administrative Agent, Lenders and the Agent and Banks other Indemnified Parties harmless from, any and all out of pocket liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Administrative Agent and/or Banks Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Administrative Agent or Banks and/or Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Agent or Banks in good faith with respect to this Agreement or the other Loan Documents.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure the Obligations of both Borrowers each Borrower under the Loan Documents and, in full recognition of that fact, each Borrower consents and agrees that the Administrative Agent and Banks and/or Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document:
(i) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;
(iv) accept partial payments on the Obligations;
(v) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Administrative Agent, in its sole and absolute discretion may determine;
(vii) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;; or
(viii) settle, release on terms satisfactory to the Administrative Agent or Banks or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event of Default, the Administrative Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Administrative Agent or Banks and/or Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Administrative Agent or Banks to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Administrative Agent or Banksand/or Lenders, in connection with the Administrative Agent's or Bank's ’s and/or Lenders’ efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Administrative Agent and Banks and/or Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the Bank's Administrative Agent’s efforts to obtain repayment of the Loan and other Obligations. Administrative Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and BanksAdministrative Agent, each Borrower Lenders, the other Borrowers and/or any other Person may deal with each other the Administrative Agent and Lenders in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of themthem or between the Borrowers and/or any other Person, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Administrative Agent and Banks and/or Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Administrative Agent or Banks and/or Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations Obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Administrative Agent or Banks and/or Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Administrative Agent or Banks and/or Lenders to give notice of sale or other disposition of any Collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Administrative Agent or Banks and/or Lenders to comply in any non-material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Administrative Agent or Banks and/or Lenders or others that directly or indirectly results in or aids the discharge or release of either any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation, (ix) any failure of the Administrative Agent or Banks and/or Lenders to file or enforce a claim in any bankruptcy or other proceeding Bankruptcy Proceeding with respect to any Person, (x) the election by the Agent or BanksAdministrative Agent, in any bankruptcy proceeding Bankruptcy Proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to the extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding Bankruptcy Proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Administrative Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding Bankruptcy Proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding.
(e) The Borrowers represent and warrant to the Administrative Agent and the Banks Lenders that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Administrative Agent and the Banks and/or Lenders to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower Borrowers or the other Borrower's Borrowers’ properties, whether now known or hereafter known by the Administrative Agent or Banks and/or Lenders during the life of this Agreement. With respect to any of the Obligations, the Administrative Agent or Banks and/or Lenders need not inquire into the powers of either any Borrower or the officers, employees or other persons Persons acting or purporting to act on such Borrower's ’s behalf.
(f) Notwithstanding Without limiting the foregoing, or anything to the contrary elsewhere else contained herein or in any other Loan Document to which either Borrower is a party, with respect to the Obligationsthis Agreement, each Borrower hereby waives with respect to the other Borrower and its successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to that it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until because the Obligations are paid and performed in fullsecured by real property. Each This means, among other things:
(i) Administrative Agent and/or Lenders may collect on the Obligations from any Borrower agrees that it shall not have without first foreclosing on any real or assert any such rights against the other Borrower or the other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower personal property collateral pledged by the other Borrowers; and
(ii) If Administrative Agent and/or Lenders foreclose on any real property collateral pledged by any Borrower for the Obligations: (as borrower or in A) the amount of the indebtedness owed by the other Borrowers 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 (B) Administrative Agent and Lenders may collect from any Borrower even if Administrative Agent and/or Lenders, by foreclosing on the real property collateral, has destroyed any right any Borrower may have to collect from the other capacityBorrowers.
(iii) or This is an unconditional and irrevocable waiver of any other Person until all rights and defenses each Borrower may have because the Obligations are paid and performed in fullsecured by real property. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank and shall not limit or otherwise affect either Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(g) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Administrative Agent or the Banks and Lenders or others, or against any Collateralcollateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Properties, Inc.)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications.
(b) To induce the Banks Lenders to provide make the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Agent and the Banks Lenders against, and hold the Agent and Banks Lenders harmless from, any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Agent and/or Banks Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Agent or Banks and/or Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Agent or Banks and/or Lenders in good faith with respect to this Agreement or the other Loan Documents.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure Obligations of both all Borrowers under the Loan Documents and, in full recognition of that fact, each Borrower consents and agrees that the Agent and Banks and/or Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document:
(i1) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii2) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii3) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;
(iv4) accept partial payments on the Obligations;
(v5) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi6) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Agent, in its sole and absolute discretion may determine;
(vii7) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;
; (viii) 8) settle, release on terms satisfactory to the Agent or Banks or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event of Default, the Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Agent or Banks and/or Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Agent or Banks to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Agent or Banksand/or Lenders, in connection with the Agent's or BankAgent and/or Lender's efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Agent and Banks and/or Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the BankAgent's efforts to obtain repayment of the Loan and other Obligations. Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and BanksAgent, Lenders, each Borrower and/or any other Person may deal with each other in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Agent and Banks and/or Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Agent or Banks and/or Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though the any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Agent or Banks and/or Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Agent or Banks and/or Lenders to give notice of sale or other disposition of any Collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Agent or Banks and/or Lenders to comply in any non-material non‑material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Agent or Banks and/or Lenders or others that directly or indirectly results in or aids the discharge or release of either any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (ix) any failure of the Agent or Banks and/or Lenders to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (x) the election by the Agent or BanksAgent, in any bankruptcy proceeding of any Person, of the application or non-application non‑application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding. Without in any way limiting the foregoing, with respect to the Loan Documents and the Obligations, each Borrower: (A) waives all rights and defenses arising out of an election of remedies by Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for Borrowers' obligations, has destroyed each of their rights of subrogation and reimbursement against the other by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise; and (B) waives any right to a fair value hearing or similar proceeding following a nonjudicial foreclosure of the Obligations, whether arising under California Code of Civil Procedure Section 580a or otherwise.
(e) The Borrowers represent and warrant to the Agent and the Banks Lenders that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Agent and the Banks and/or Lenders to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower Borrowers or the other Borrower's Borrowers' properties, whether now known or hereafter known by the Agent or Banks and/or Lenders during the life of this Agreement. With respect to any of the Obligations, the Agent or Banks and/or Lenders need not inquire into the powers of either any Borrower or the officers, employees or other persons Persons acting or purporting to act on such Borrower's behalf.
(f) Without limiting the foregoing, or anything else contained in this Agreement, each Borrower waives all rights and defenses that it may have because the Obligations are secured by real property. This means, among other things:
(1) Agent and/or Lenders may collect on the Obligations from any Borrower without first foreclosing on any real or personal property collateral pledged by the other Borrowers; and
(2) If Agent forecloses on any real property collateral pledged by any Borrower for the Obligations: (A) the amount of the indebtedness owed by the other Borrowers 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 (B) Agent may collect from any Borrower even if Agent, by foreclosing on the real property collateral, has destroyed any right any Borrower may have to collect from the other Borrowers.
(g) This is an unconditional and irrevocable waiver of any rights and defenses each 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 Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Each Borrower expressly waives any right to receive notice of any judicial or nonjudicial foreclosure or sale of any real property collateral provided by the other Borrower to secure the Obligations and failure to receive any such notice shall not impair or affect such Borrower's obligations hereunder or the enforceability of this Agreement or the other Loan Documents or any liens created or granted hereby or thereby.
(h) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which either any Borrower is a party, with respect to the Loan and all other Obligations, each Borrower hereby waives with respect to the other Borrower Borrowers and its their successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until the Obligations are paid and performed in full. Each Borrower agrees that it shall not have or assert any such rights against the any other Borrower or the any other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower by the any other Borrower (as borrower or in any other capacity) or any other Person until the all the Obligations are paid and performed in full. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank Agent and Lenders and shall not limit or otherwise affect either any Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(gi) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Agent or the Banks and Lenders or others, or against any Collateralcollateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications.
(b) To induce the Banks Lenders to provide make the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Agent and the Banks Lenders against, and hold the Agent and Banks Lenders harmless from, any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Agent and/or Banks Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Agent or Banks and/or Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Agent or Banks and/or Lenders in good faith with respect to this Agreement or the other Loan Documents.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure Obligations of both all Borrowers under the Loan Documents and, in full recognition of that fact, each Borrower consents and agrees that the Agent and Banks and/or Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document:
(i1) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii2) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii3) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;
(iv4) accept partial payments on the Obligations;
(v5) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi6) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Agent, in its sole and absolute discretion may determine;
(vii7) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;
(viii) 8) settle, release on terms satisfactory to the Agent or Banks or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event of Default, the Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Agent or Banks and/or Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Agent or Banks to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Agent or Banksand/or Lenders, in connection with the Agent's or Bank's Agent and/or Lender’s efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Agent and Banks and/or Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the Bank's Agent’s efforts to obtain repayment of the Loan and other Obligations. Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and BanksAgent, Lenders, each Borrower and/or any other Person may deal with each other in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Agent and Banks and/or Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Agent or Banks and/or Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though the any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Agent or Banks and/or Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Agent or Banks and/or Lenders to give notice of sale or other disposition of any Collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Agent or Banks and/or Lenders to comply in any non-material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Agent or Banks and/or Lenders or others that directly or indirectly results in or aids the discharge or release of either any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation, (ix) any failure of the Agent or Banks and/or Lenders to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (x) the election by the Agent or BanksAgent, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding. Without in any way limiting the foregoing, with respect to the Loan Documents and the Obligations, each Borrower: (A) waives all rights and defenses arising out of an election of remedies by Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for Borrowers’ obligations, has destroyed each of their rights of subrogation and reimbursement against the other by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise; and (B) waives any right to a fair value hearing or similar proceeding following a nonjudicial foreclosure of the Obligations, whether arising under California Code of Civil Procedure Section 580a or otherwise.
(e) The Borrowers represent and warrant to the Agent and the Banks Lenders that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Agent and the Banks and/or Lenders to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower Borrowers or the other Borrower's Borrowers’ properties, whether now known or hereafter known by the Agent or Banks and/or Lenders during the life of this Agreement. With respect to any of the Obligations, the Agent or Banks and/or Lenders need not inquire into the powers of either any Borrower or the officers, employees or other persons Persons acting or purporting to act on such Borrower's ’s behalf.
(f) Without limiting the foregoing, or anything else contained in this Agreement, each Borrower waives all rights and defenses that it may have because the Obligations are secured by real property. This means, among other things:
(1) Agent and/or Lenders may collect on the Obligations from any Borrower without first foreclosing on any real or personal property collateral pledged by the other Borrowers; and
(2) If Agent forecloses on any real property collateral pledged by any Borrower for the Obligations: (A) the amount of the indebtedness owed by the other Borrowers 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 (B) Agent may collect from any Borrower even if Agent, by foreclosing on the real property collateral, has destroyed any right any Borrower may have to collect from the other Borrowers.
(g) This is an unconditional and irrevocable waiver of any rights and defenses each 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 Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Each Borrower expressly waives any right to receive notice of any judicial or nonjudicial foreclosure or sale of any real property collateral provided by the other Borrower to secure the Obligations and failure to receive any such notice shall not impair or affect such Borrower’s obligations hereunder or the enforceability of this Agreement or the other Loan Documents or any liens created or granted hereby or thereby.
(h) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which either any Borrower is a party, with respect to the Loan and all other Obligations, each Borrower hereby waives with respect to the other Borrower Borrowers and its their successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's ’s execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until the Obligations are paid and performed in full. Each Borrower agrees that it shall not have or assert any such rights against the any other Borrower or the any other Borrower's ’s successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower by the any other Borrower (as borrower or in any other capacity) or any other Person until the all the Obligations are paid and performed in full. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank Agent and Lenders and shall not limit or otherwise affect either any Borrower's ’s liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(gi) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Agent or the Banks and Lenders or others, or against any Collateralcollateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications.
(b) To induce the Banks Lenders to provide make the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Administrative Agent and the Banks Lenders against, and hold the Administrative Agent and Banks Lenders harmless from, any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Administrative Agent and/or Banks Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Administrative Agent or Banks and/or Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Administrative Agent or Banks and/or Lenders in good faith with respect to this Agreement or the other Loan Documents.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents (as applicable, and expressly excluding the Indemnity and the Guaranties) will secure Obligations of both all Borrowers under the Loan Documents (other than the Indemnity) and, in full recognition of that fact, each Borrower consents and agrees that the Administrative Agent and Banks and/or Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document:
(i) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;
(iv) accept partial payments on the Obligations;
(v) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Administrative Agent, in its sole and absolute discretion may determine;
(vii) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;
(viii) settle, release on terms satisfactory to the Administrative Agent or Banks or by operation of applicable laws Laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event of Default, the Administrative Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Administrative Agent or Banks and/or Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Administrative Agent or Banks to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Administrative Agent or Banksand/or Lenders, in connection with the Administrative Agent's or Bankand/or Lender's efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Administrative Agent and Banks and/or Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the BankAdministrative Agent's efforts to obtain repayment of the Loan and other Obligations. Administrative Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and BanksAdministrative Agent, Lenders, each Borrower and/or any other Person may deal with each other in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Administrative Agent and Banks and/or Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Administrative Agent or Banks and/or Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though the any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Administrative Agent or Banks and/or Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Administrative Agent or Banks and/or Lenders to give notice of sale or other disposition of any Collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Administrative Agent or Banks and/or Lenders to comply in any non-material respect with applicable laws Laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Administrative Agent or Banks and/or Lenders or others that directly or indirectly results in or aids the discharge or release of either any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (ix) any failure of the Administrative Agent or Banks and/or Lenders to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (x) the election by the Agent or BanksAdministrative Agent, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Section 364 of the Bankruptcy Code except to extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Administrative Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding. Without in any way limiting the foregoing, with respect to the Loan Documents and the Obligations, each Borrower: (A) waives all rights and defenses arising out of an election of remedies by Administrative Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for Borrowers' obligations, has destroyed each of their rights of subrogation and reimbursement against the other by the operation of Section 580d of the California Code of Civil Procedure or otherwise; and (B) waives any right to a fair value hearing or similar proceeding following a nonjudicial foreclosure of the Obligations, whether arising under California Code of Civil Procedure Section 580a or otherwise.
(e) The Borrowers represent and warrant to the Administrative Agent and the Banks Lenders that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Administrative Agent and the Banks and/or Lenders to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower Borrowers or the other Borrower's Borrowers' properties, whether now known or hereafter known by the Administrative Agent or Banks and/or Lenders during the life of this Agreement. With respect to any of the Obligations, the Administrative Agent or Banks and/or Lenders need not inquire into the powers of either any Borrower or the officers, employees or other persons Persons acting or purporting to act on such Borrower's behalf.
(f) Without limiting the foregoing, or anything else contained in this Agreement, each Borrower waives all rights and defenses that it may have because the Borrowers' debt is secured by real property. This means, among other things:
(i) Administrative Agent and/or Lenders may collect on the debt from any Borrower without first foreclosing on any real or personal property collateral pledged by the other Borrowers; and
(ii) If Administrative Agent forecloses on any real property collateral pledged by any Borrower: (A) the amount of the 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 (B) Administrative Agent may collect from any Borrower even if Administrative Agent, by foreclosing on the real property collateral, has destroyed any right any Borrower may have to collect from the other Borrowers. The foregoing is an unconditional and irrevocable waiver of any rights and defenses each Borrower may have because the debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Each Borrower expressly waives any right to receive notice of any judicial or nonjudicial foreclosure or sale of any real property collateral provided by any other Borrower to secure the debt and failure to receive any such notice shall not impair or affect such Borrower's obligations hereunder or the enforceability of this Agreement or the other Loan Documents or any liens created or granted hereby or thereby.
(g) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which either any Borrower is a party, with respect to the Loan and all other Obligations, each Borrower hereby waives with respect to the other Borrower Borrowers and its their successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until the Obligations are paid and performed in full. Each Borrower agrees that it shall not have or assert any such rights against the any other Borrower or the any other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower by the any other Borrower (as borrower or in any other capacity) or any other Person until the all the Obligations are paid and performed in full. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank Administrative Agent and Lenders and shall not limit or otherwise affect either any Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(gh) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Administrative Agent or the Banks and Lenders or others, or against any Collateralcollateral. If any of the waivers or consents herein are determined to be contrary to any applicable law Law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Term Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications.
(b) To induce the Banks Lenders to provide make the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Agent and the Banks Lenders against, and hold the Agent and Banks Lenders harmless from, any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Agent and/or Banks Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Agent or Banks and/or Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Agent or Banks and/or Lenders in good faith with respect to this Agreement or the other Loan Documents.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure Obligations of both all Borrowers under the Loan Documents and, in full recognition of that fact, each Borrower consents and agrees that the Agent and Banks and/or Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document:
(i1) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii2) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii3) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;
(iv4) accept partial payments on the Obligations;
(v5) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi6) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Agent, in its sole and absolute discretion may determine;
(vii7) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;
(viii) 8) settle, release on terms satisfactory to the Agent or Banks or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event of Default, the Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Agent or Banks and/or Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Agent or Banks to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Agent or Banksand/or Lenders, in connection with the Agent's or BankAgent and/or Lender's efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Agent and Banks and/or Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the BankAgent's efforts to obtain repayment of the Loan and other Obligations. Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and BanksAgent, Lenders, each Borrower and/or any other Person may deal with each other in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Agent and Banks and/or Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Agent or Banks and/or Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though the any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Agent or Banks and/or Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Agent or Banks and/or Lenders to give notice of sale or other disposition of any Collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Agent or Banks and/or Lenders to comply in any non-material non‑material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Agent or Banks and/or Lenders or others that directly or indirectly results in or aids the discharge or release of either any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (ix) any failure of the Agent or Banks and/or Lenders to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (x) the election by the Agent or BanksAgent, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding. Without in any way limiting the foregoing, with respect to the Loan Documents and the Obligations, each Borrower: (A) waives all rights and defenses arising out of an election of remedies by Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for Borrowers' obligations, has destroyed each of their rights of subrogation and reimbursement against the other by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise; and (B) waives any right to a fair value hearing or similar proceeding following a nonjudicial foreclosure of the Obligations, whether arising under California Code of Civil Procedure Section 580a or otherwise.
(e) The Borrowers represent and warrant to the Agent and the Banks Lenders that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Agent and the Banks and/or Lenders to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower Borrowers or the other Borrower's Borrowers' properties, whether now known or hereafter known by the Agent or Banks and/or Lenders during the life of this Agreement. With respect to any of the Obligations, the Agent or Banks and/or Lenders need not inquire into the powers of either any Borrower or the officers, employees or other persons Persons acting or purporting to act on such Borrower's behalf.
(f) Without limiting the foregoing, or anything else contained in this Agreement, each Borrower waives all rights and defenses that it may have because the Obligations are secured by real property. This means, among other things:
(1) Agent and/or Lenders may collect on the Obligations from any Borrower without first foreclosing on any real or personal property collateral pledged by the other Borrowers; and
(2) If Agent forecloses on any real property collateral pledged by any Borrower for the Obligations: (A) the amount of the indebtedness owed by the other Borrowers may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if - 57- Loan Agreement (KBS REIT II) the collateral is worth more than the sale price; and (B) Agent may collect from any Borrower even if Agent, by foreclosing on the real property collateral, has destroyed any right any Borrower may have to collect from the other Borrowers.
(g) This is an unconditional and irrevocable waiver of any rights and defenses each 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 Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Each Borrower expressly waives any right to receive notice of any judicial or nonjudicial foreclosure or sale of any real property collateral provided by the other Borrower to secure the Obligations and failure to receive any such notice shall not impair or affect such Borrower's obligations hereunder or the enforceability of this Agreement or the other Loan Documents or any liens created or granted hereby or thereby.
(h) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which either any Borrower is a party, with respect to the Loan and all other Obligations, each Borrower hereby waives with respect to the other Borrower Borrowers and its their successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until the Obligations are paid and performed in full. Each Borrower agrees that it shall not have or assert any such rights against the any other Borrower or the any other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower by the any other Borrower (as borrower or in any other capacity) or any other Person until the all the Obligations are paid and performed in full. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank Agent and Lenders and shall not limit or otherwise affect either any Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(gi) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Agent or the Banks and Lenders or others, or against any Collateralcollateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust II, Inc.)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications.
(b) To induce Lenders to make the Banks to provide the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Agent Administrative Agent, Lenders and the Banks other Indemnified Parties against, and hold Administrative Agent, Lenders and the Agent and Banks other Indemnified Parties harmless from, any and all out of pocket liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Administrative Agent and/or Banks Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Administrative Agent or Banks and/or Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Agent or Banks in good faith with respect to this Agreement or the other Loan Documents.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure the Obligations of both Borrowers each Borrower under the Loan Documents and, in full recognition of that fact, each Borrower consents and agrees that the Administrative Agent and Banks and/or Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document:
(i) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;
(iv) accept partial payments on the Obligations;
(v) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Administrative Agent, in its sole and absolute discretion may determine;
(vii) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;; or
(viii) settle, release on terms satisfactory to the Administrative Agent or Banks or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event of Default, the Administrative Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Administrative Agent or Banks and/or Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Administrative Agent or Banks to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Administrative Agent or Banksand/or Lenders, in connection with the Administrative Agent's or Bank's ’s and/or Lenders’ efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Administrative Agent and Banks and/or Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the Bank's Administrative Agent’s efforts to obtain repayment of the Loan and other Obligations. Administrative Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and BanksAdministrative Agent, each Borrower Lenders, the other Borrowers and/or any other Person may deal with each other the Administrative Agent and Lenders in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of themthem or between the Borrowers and/or any other Person, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Administrative Agent and Banks and/or Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Administrative Agent or Banks and/or Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations Obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Administrative Agent or Banks and/or Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Administrative Agent or Banks and/or Lenders to give notice of sale or other disposition of any Collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Administrative Agent or Banks and/or Lenders to comply in any non-material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Administrative Agent or Banks and/or Lenders or others that directly or indirectly results in or aids the discharge or release of either any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation, (ix) any failure of the Administrative Agent or Banks and/or Lenders to file or enforce a claim in any bankruptcy or other proceeding Bankruptcy Proceeding with respect to any Person, (x) the election by the Agent or BanksAdministrative Agent, in any bankruptcy proceeding Bankruptcy Proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to the extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding Bankruptcy Proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Administrative Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding Bankruptcy Proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding.
(e) The Borrowers represent and warrant to the Administrative Agent and the Banks Lenders that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Administrative Agent and the Banks and/or Lenders to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower Borrowers or the other Borrower's Borrowers’ properties, whether now known or hereafter known by the Administrative Agent or Banks and/or Lenders during the life of this Agreement. With respect to any of the Obligations, the Administrative Agent or Banks and/or Lenders need not inquire into the powers of either any Borrower or the officers, employees or other persons Persons acting or purporting to act on such Borrower's ’s behalf.
(f) Notwithstanding Without limiting the foregoing, or anything to the contrary elsewhere else contained herein or in any other Loan Document to which either Borrower is a party, with respect to the Obligationsthis Agreement, each Borrower hereby waives with respect to the other Borrower and its successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to that it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until because the Obligations are paid and performed in fullsecured by real property. Each This means, among other things:
(i) Administrative Agent and/or Lenders may collect on the Obligations from any Borrower agrees that it shall not have without first foreclosing on any real or assert any such rights against the other Borrower or the other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower personal property collateral pledged by the other Borrowers; and
(ii) If Administrative Agent and/or Lenders foreclose on any real property collateral pledged by any Borrower for the Obligations: (as borrower or in A) the amount of the indebtedness owed by the other Borrowers 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 (B) Administrative Agent and Lenders may collect from any Borrower even if Administrative Agent and/or Lenders, by foreclosing on the real property collateral, has destroyed any right any Borrower may have to collect from the other capacityBorrowers.
(iii) or This is an unconditional and irrevocable waiver of any other Person until all rights and defenses each Borrower may have because the Obligations are paid and performed in fullsecured by real property. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank and shall not limit or otherwise affect either Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(g) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Administrative Agent or the Banks and Lenders or others, or against any Collateralcollateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Credit Agreement (CapLease, Inc.)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")and Swap Contracts. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan DocumentsDocuments and any Swap Contracts, including the giving and receiving of notices and other communications.
(b) To induce the Banks Administrative Agent and Lenders to provide make the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Administrative Agent and the Banks Lenders against, and hold the Administrative Agent and Banks Lenders harmless from, any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Administrative Agent and/or Banks and SMRH:479612560.8 91 Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Administrative Agent or Banks and Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Administrative Agent or Banks and Lenders in good faith with respect to this Agreement or the other Loan DocumentsDocuments and any Swap Contracts.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure Obligations of both all Borrowers under the Loan Documents and Swap Contracts and, in full recognition of that fact, each Borrower consents and agrees that the Administrative Agent and Banks Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan DocumentDocument or any Swap Contract:
(i) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or Swap Contracts or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or Swap Contracts or the Obligations or any part thereof;
(iv) accept partial payments on the Obligations;
(v) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as AgentAdministrative Agent and Lender, in its sole and absolute discretion may determine;
(vii) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;
(viii) settle, release on terms satisfactory to the Administrative Agent or Banks and Lenders or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either SMRH:479612560.8 92 any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document or Swap Contracts to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event event of Defaultdefault, the Administrative Agent or Banks and Lenders may enforce this Agreement and the other Loan Documents or Swap Contracts independently as to each Borrower and independently of any other remedy or security the Administrative Agent or Banks and Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Administrative Agent or Banks and Lenders to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan DocumentsDocuments or Swap Contracts. Each Borrower expressly waives any right to require the Administrative Agent or Banksand Lenders, in connection with the Agent's or BankAdministrative Agent and Lender's efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Administrative Agent and Banks Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the BankAdministrative Agent and Lender's efforts to obtain repayment of the Loan and other Obligations. Administrative Agent and Banks Lenders may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents Administrative Agent and BanksLenders, each Borrower and/or any other Person may deal with each other in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan DocumentsDocuments or any Swap Contracts. The rights of the Agent Administrative Agents and Banks Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents and Swap Contracts shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Administrative Agent or Banks and Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents and Swap Contracts at all times shall remain effective even though the any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations under the Loan Documents and Swap Contracts now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Administrative Agent or Banks and Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Administrative Agent or Banks and Lenders to give notice of sale or other disposition of any Collateral collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Agent or Banks to comply in any non-material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Agent or Banks or others that directly or indirectly results in or aids the discharge or release of either Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (ix) any failure of the Agent or Banks to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (x) the election by the Agent or Banks, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding.
(e) The Borrowers represent and warrant to the Agent and the Banks that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Agent and the Banks to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower or the other Borrower's properties, whether now known or hereafter known by the Agent or Banks during the life of this Agreement. With respect to any of the Obligations, the Agent or Banks need not inquire into the powers of either Borrower or the officers, employees or other persons acting or purporting to act on such Borrower's behalf.
(f) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which either Borrower is a party, with respect to the Obligations, each Borrower hereby waives with respect to the other Borrower and its successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until the Obligations are paid and performed in full. Each Borrower agrees that it shall not have or assert any such rights against the other Borrower or the other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower by the other Borrower (as borrower or in any other capacity) or any other Person until all the Obligations are paid and performed in full. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank and shall not limit or otherwise affect either Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(g) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Agent or the Banks or others, or against any Collateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.or
Appears in 1 contract
Samples: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
Joint Borrower Provisions. Each Borrower acknowledges and agrees that it shall be jointly and severally liable for the Revolving Line of Credit, the Term Loan and all other indebtedness and obligations Obligations arising under this Agreement, the Notes, and all Agreement and/or any of the other Loan Documents (collectively, the "Obligations")Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:
(a) For the purpose of implementing the joint borrower provisions of the Loan Documents, each Borrower hereby irrevocably appoints the each other Borrower as its agent and attorney-in-fact for all purposes of the Loan Documents, including the giving and receiving of notices and other communications.
(b) To induce the Banks Lenders to provide make the Borrowers with the Revolving Line of Credit and the Term Loan, and in consideration thereof, each Borrower hereby agrees to indemnify the Agent and the Banks Lenders against, and hold the Agent and Banks Lenders harmless from, any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against the Agent and/or Banks Lenders by either any Borrower or by any other individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or governmental authority (collectively, a "Person") Person arising from or incurred by reason of (i) reliance by the Agent or Banks and/or Lenders on any requests or instructions from either any Borrower, or (ii) any other action taken by the Agent or Banks and/or Lenders in good faith with respect to this Agreement or the other Loan Documents.
(c) Each Borrower acknowledges that the liens and security interests created or granted herein and by the other Loan Documents will secure Obligations of both all Borrowers under the Loan Documents and, in full recognition of that fact, each Borrower consents and agrees that the Agent and Banks and/or Lenders may, at any time and from time to time, without notice or demand, and without affecting the enforceability or security hereof or of any other Loan Document:
(i1) agree with the Borrowers any Borrower to supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;
(ii2) agree with the Borrowers any Borrower to supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;
(iii3) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;
(iv4) accept partial payments on the Obligations;
(v5) receive and hold additional security or guaranties for the Obligations or any part thereof;
(vi6) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security for or guaranties of the Obligations, and apply any security and direct the order or manner of sale thereof as Agent, in its sole and absolute discretion may determine;
(vii7) release any Person or entity or any guarantor from any personal liability with respect to the Obligations or any part thereof;
(viii) 8) settle, release on terms satisfactory to the Agent or Banks or by operation of applicable laws or otherwise liquidate or enforce any Obligations and any security therefor or guaranty thereof in any manner, consent to the transfer of any such security and bid and purchase at any sale; and
(ix) and consent to the merger, change or any other restructuring or termination of the corporate existence of either any Borrower or any other Person, and correspondingly restructure the obligations of such Borrower or other Person, and any such merger, change, restructuring or termination shall not affect the liability of either any Borrower or the continuing existence of any lien or security interest hereunder, under any other Loan Document to which either any Borrower is a party or the enforceability hereof or thereof with respect to all or any part of the Obligations.
(d) Upon the occurrence of and during the continuance of any Event of Default, the Agent or Banks may enforce this Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Agent or Banks and/or Lenders at any time may have or hold in connection with the Obligations, and in collecting on the Obligations Loan it shall not be necessary for the Agent or Banks to marshal assets in favor of either any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Agreement and the other Loan Documents. Each Borrower expressly waives any right to require the Agent or Banksand/or Lenders, in connection with the Agent's or BankAgent and/or Lender's efforts to obtain repayment of the Loan and other Obligations, to marshal assets in favor of either any Borrower or any other Person or to proceed against any other Person or any collateral provided by any other Person, and agrees that the Agent and Banks and/or Lenders may proceed against any Persons and/or collateral in such order as they it shall determine in their its sole and absolute discretion in connection with the BankAgent's efforts to obtain repayment of the Loan and other Obligations. Agent and Banks may file a separate action or actions against each Borrower to enforce the Obligations, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that Agents and BanksAgent, Lenders, each Borrower and/or any other Person may deal with each other in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Agreement or the other Loan Documents. The rights of the Agent and Banks and/or Lenders hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of this Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or returned by the Agent or Banks and/or Lenders as a result of the bankruptcy, insolvency or reorganization of either any Borrower or any other Person, or otherwise, all as though such amount had not been paid. The enforceability of this Agreement and the other Loan Documents at all times shall remain effective even though the any or all Obligations, or any other security or guaranty therefor, may be or hereafter may become invalid or otherwise unenforceable as against either any Borrower or any other Person and whether or not either any Borrower or any other Person shall have any personal liability with respect thereto. Each Borrower expressly waives any and all defenses to the enforcement of its obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of either any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of either any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of the Agent or Banks and/or Lenders to marshal assets in favor of either any of the Borrowers or any other Person, (v) any failure of the Agent or Banks and/or Lenders to give notice of sale or other disposition of any Collateral for the Obligations to either any Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of the Agent or Banks and/or Lenders to comply in any non-material non‑material respect with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Obligation, (vii) any act or omission of the Agent or Banks and/or Lenders or others that directly or indirectly results in or aids the discharge or release of either any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (ix) any failure of the Agent or Banks and/or Lenders to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (x) the election by the Agent or BanksAgent, in any bankruptcy proceeding of any Person, of the application or non-application non‑application of Section 1111(b)(2) of the United States Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code except to extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of the Agent or Banks securing the Obligations for any reason, or (xv) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding. Without in any way limiting the foregoing, with respect to the Loan Documents and the Obligations, each Borrower: (A) waives all rights and defenses arising out of an election of remedies by Agent, even though that election of remedies, such as non-judicial foreclosure with respect to security for Borrowers' obligations, has destroyed each of their rights of subrogation and reimbursement against the other by the -52- Loan Agreement (KBS REIT I) operation of Section 580(d) of the California Code of Civil Procedure or otherwise; and (B) waives any right to a fair value hearing or similar proceeding following a nonjudicial foreclosure of the Obligations, whether arising under California Code of Civil Procedure Section 580a or otherwise.
(e) The Borrowers represent and warrant to the Agent and the Banks Lenders that they have established adequate means of obtaining from each other, on a continuing basis, financial and other information pertaining to their respective businesses, operations and condition (financial and otherwise) and their respective properties, and each now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the other and their respective properties. Each Borrower hereby expressly waives and relinquishes any duty on the part of Agent and the Banks and/or Lenders to disclose to such Borrower any matter, fact or thing related to the businesses, operations or condition (financial or otherwise) of the other Borrower Borrowers or the other Borrower's Borrowers' properties, whether now known or hereafter known by the Agent or Banks and/or Lenders during the life of this Agreement. With respect to any of the Obligations, the Agent or Banks and/or Lenders need not inquire into the powers of either any Borrower or the officers, employees or other persons Persons acting or purporting to act on such Borrower's behalf.
(f) Without limiting the foregoing, or anything else contained in this Agreement, each Borrower waives all rights and defenses that it may have because the Obligations are secured by real property. This means, among other things:
(1) Agent and/or Lenders may collect on the Obligations from any Borrower without first foreclosing on any real or personal property collateral pledged by the other Borrowers; and
(2) If Agent forecloses on any real property collateral pledged by any Borrower for the Obligations: (A) the amount of the indebtedness owed by the other Borrowers 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 (B) Agent may collect from any Borrower even if Agent, by foreclosing on the real property collateral, has destroyed any right any Borrower may have to collect from the other Borrowers.
(g) This is an unconditional and irrevocable waiver of any rights and defenses each 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 Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Each Borrower expressly waives any right to receive notice of any judicial or nonjudicial foreclosure or sale of any real property collateral provided by the other Borrower to secure the Obligations and failure to receive any such notice shall not impair or affect such Borrower's obligations hereunder or the enforceability of this Agreement or the other Loan Documents or any liens created or granted hereby or thereby.
(h) Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which either any Borrower is a party, with respect to the Loan and all other Obligations, each Borrower hereby waives with respect to the other Borrower Borrowers and its their successors and assigns (including any surety) and any other Person any and all rights at law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to setoff, to any other rights and defenses available to it by reason of California Civil Code Sections 2787 and 2855, inclusive, or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which each of them may have or hereafter acquire against the other or any other Person in connection with or as a result of such Borrower's execution, delivery and/or performance of this Agreement or any other Loan Document to which it is a party until the Obligations are paid and performed in full. Each Borrower agrees that it shall not have or assert any such rights against the any other Borrower or the any other Borrower's successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against such Borrower by the any other Borrower (as borrower or in any other capacity) or any other Person until the all the Obligations are paid and performed in full. Each Borrower hereby acknowledges and agrees that this waiver is intended to benefit the Bank Agent and Lenders and shall not limit or otherwise affect either any Borrower's liability under this Agreement or any other Loan Document to which it is a party, or the enforceability hereof or thereof.
(gi) Each Borrower warrants and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which each otherwise may have against the other, against the Agent or the Banks and Lenders or others, or against any Collateralcollateral. If any of the waivers or consents herein are determined to be contrary to any applicable law or public policy, such waivers and consents shall be effective to the maximum extent permitted by law.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
