Suretyship Waivers. 6.1. In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply: (a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal laws.
Appears in 2 contracts
Samples: Deed of Trust (Cadiz Inc), Credit Agreement (Cadiz Inc)
Suretyship Waivers. 6.1. In addition to all waivers expressed in the Credit event this Agreement and is signed by more than one party, each of the other Loan Documents, undersigned waives (a) to the extent that permitted by law, all rights and benefits under any Person comprising Trustor (a “Trustor Party”) is construed laws or statutes regarding sureties, as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collectionmaybe amended; (2b) any right to receive notice of the existencefollowing matters before the Issuer enforces any of its rights: (i) the Issuer’s acceptance of this Agreement; (ii) any credit that the Issuer extends to the Applicant; (iii) Applicant’s default; (iv) any demand, creationdiligence, presentment, dishonor and protest; (v) any action that the Issuer takes regarding the Applicant, beneficiary, anyone else, any Collateral, or incurring of any new or additional obligations under or pursuant to any of the Loan DocumentsObligations, that it might be entitled to by law or under any other agreement; (3c) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary the Issuer to proceed against the Applicant, any other obligor or exhaust guarantor of the Obligations, or any security Collateral, or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiaryin the Issuer’s power to pursue; (6d) any right to direct defense based on any claim that any endorser or other parties’ obligations exceed or are more burdensome than those of the application Applicant; (e) the benefit of any security held by Beneficiarystatute of limitations affecting liability of any endorser or other party liable hereunder or the enforcement hereof; (7f) any right defense arising by reason of subrogation any disability or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now other. defense of the Applicant or hereafter held by Beneficiary and any right to reimbursement reason of the cessation from any cause whatsoever (other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment than payment in Full (as hereinafter definedfull) of all obligations the obligation of Trustor under the Loan Documents and of all Obligations secured by this Deed of TrustApplicant for the Obligations; (8) g) any defense based on or arising out of any disability defense that the Applicant may have to the payment or performance of the Obligations or any portion thereof, (h) all rights, remedies, defenses and claims and/or rights of counterclaim, recoupment, offset or setoff, including, but not limited to, all offsets, setoffs, rights, remedies or defenses that may be afforded the endorser and any other defense party liable on this Agreement as any of such statutes may be amended from time to time; and (i) any Trustor Partydefenses given to such endorser by any failure, neglect or omission by the Issuer to perfect in any manner the collection of the Obligations or the security given therefor, including bankruptcythe failure or omission to seek a deficiency judgment against the Applicant. Any party liable on this Agreement consents to any extension or postponement of time of its payment without limit as to the number or period, dissolutionto any substitution, liquidationexchange or release of all or any part of the Collateral, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for to the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or addition of any other fact that might increase such Trustor Party’s risk under party, and to the Loan Documents; release or discharge of, or suspension of any rights and (12) all notices (except if such notice is specifically required to remedies against, any person who may be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean liable for the payment of this Agreement. The Issuer may waive or delay enforcing any of its rights without losing them. Any waiver affects only the specific terms and time period stated in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance waiver. No modification or other avoidance actions that may be applicable to the circumstances of payment waiver of any or all provision of such obligations under any this Agreement is effective unless it is in writing and all laws of signed by the State of California and federal lawsparty against whom it is being enforced.
Appears in 1 contract
Samples: Note Modification Agreement (Flexsteel Industries Inc)
Suretyship Waivers. 6.1. In addition (a) The obligations of each Borrower hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of any Borrower, the Parent, or any Subsidiary under this Agreement, any Note, or any other Loan Document, by operation of law or otherwise or any obligation of any guarantor of any of the Obligations;
(ii) any modification or amendment of or supplement to all waivers expressed this Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any direct or indirect security for any obligation of any Borrower, the Parent, or any Subsidiary under this Agreement, any Note, any Loan Document, or any obligations of any guarantor of any of the Obligations;
(iv) any change in the Credit corporate existence, structure or ownership of any Borrower, the Parent, or any Subsidiary or any guarantor of any of the Obligations, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Borrower, the Parent, or any Subsidiary or any guarantor of the Obligations, or its assets or any resulting release or discharge of any obligation of any Borrower, the Parent, or any Subsidiary or any guarantor of any of the Obligations;
(v) the existence of any claim, setoff or other rights which the Borrower may have at any time against any Borrower, the Parent, or any Subsidiary or any guarantor of any of the Obligations, the Administrative Agent, any Lender or any other Person, whether in connection herewith or any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against any Borrower, the Parent, or any Subsidiary or any guarantor of any of the Obligations, for any reason related to this Agreement, any other Loan Document, or any provision of applicable law or regulation purporting to prohibit the payment by either of the Borrowers, or any guarantor of the Obligations, of the principal of or interest on any Note or any other amount payable by either of the Borrowers under this Agreement, the Notes, or any other Loan Document; or
(vii) any other act or omission to act or delay of any kind by any Borrower, the Parent, or any Subsidiary or any guarantor of the Obligations, the Administrative Agent, any Lender or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of such Borrower's obligations hereunder, including without limitation, any failure, omission, delay or inability on the part of the Administrative Agent or any Lender to enforce, assert or exercise any right power or remedy conferred on the Administrative Agent or any Lender under this Agreement and the or any other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:.
(ab) Each Trustor Party hereby absolutelyBorrower irrevocably waives acceptance hereof, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and and, to the fullest extent permitted by law, any notice of protestnot provided for herein, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of as well as any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party requirement that at any time prior to any action be taken by any Person against such Borrower, any other Borrower, any guarantor of the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modificationObligations, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal lawsPerson.
Appears in 1 contract
Samples: Credit Agreement (Airborne Inc /De/)
Suretyship Waivers. 6.1. In addition to all waivers expressed in Each Borrower hereby expressly waives (A) diligence, presentment, demand for payment, protest, benefit of any statute of limitations affecting such Borrower’s liability under the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor ; (a “Trustor Party”B) is construed as or constitutes a surety with respect discharge due to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage disability of any defense based upon Borrower; (1C) presentmentany defenses of any Borrower to obligations under the Loan Documents not arising under the express terms of the Loan Documents or from a material breach thereof by Borrower which under applicable law has the effect of discharging any Borrower from the Obligations as to which this Agreement is sought to be enforced; (D) the benefit of any act or omission by Borrower which directly or indirectly results in or aids the discharge of any Borrower from any of the Obligations by operation of law or otherwise; (E) except as expressly provided herein, demandall notices whatsoever, protest and notice of protestincluding, notice of dishonor and of non-paymentwithout limitation, notice of acceptance of the Loan Documents, and diligence in collectionincurring of the Obligations; (2F) notice any right it may have to require Borrower to disclose to it any information that Borrower may now or hereafter acquire concerning the financial condition or any circumstances that bears on the risk of nonpayment by any other Borrower, including, without limitation, the existencerelease of such other Borrower from its Obligations hereunder; and (G) any requirement that Borrower exhaust any right, creationpower or remedy or proceed against any other Borrower or any other security for, or incurring of any new guarantor of, or additional obligations under or pursuant to any other party liable for, any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice toObligations, or make demand upon any other Trustor Party; portion thereof. Each Borrower specifically agrees that it shall not be necessary or required, and Borrowers shall not be entitled to require, that Borrower (4i) any right file suit or proceed to require Beneficiary to proceed against assert or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have obtain a claim for personal judgment against any other Trustor Party and Borrower for all or any right part of the Obligations; (ii) make any effort at collection or enforcement of all or any part of the Obligations from any Borrower; (iii) foreclose against or seek to participate in realize upon any security now or hereafter held by Beneficiary and existing for all or any right part of the Obligations; (iv) file suit or proceed to reimbursement from obtain or assert a claim for personal judgment against any Borrower or any guarantor or other party liable for all or any part of the Obligations; (v) exercise or assert any other Person comprising Trustor for amounts paid right or remedy to Beneficiary by which Borrower is or may be entitled in connection with the Obligations or any security or guaranty relating thereto to assert; or (vi) file any claim against assets of one Borrower before or as a condition of enforcing the liability of any other Trustor Party Borrower under this Agreement or the Notes. Without limiting the generality of the foregoing, each Borrower expressly waives the benefit of California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848 (until such time as the Obligations are satisfied in full), 2849 (until such time as the Obligations are satisfied in full), 2850, 2899 and 1432. WITHOUT LIMITING THE FOREGOING IN ANY WAY, EACH BORROWER HEREBY IRREVOCABLY WAIVES AND RELEASES:
(a) Any and all rights it may have at any time prior (whether arising directly or indirectly, by operation of law, contract or otherwise) to require the Payment marshaling of any assets of any Borrower, which right of marshaling might otherwise arise from any such payments made or obligations performed;
(b) Until such time as the Obligations have been satisfied in Full (as hereinafter defined) of full, any and all obligations of Trustor rights that would result in such Borrower being deemed a “creditor” under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or bankruptcy code of any other fact Borrower or any other person, on account of payments made or obligations performed by such Borrower; and
(c) Until such time as the Obligations have been satisfied in full, any claim, right or remedy which it may now have or hereafter acquire against any other Borrower that might increase arises hereunder and/or from the performance by it hereunder including, without limitation, any claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification or participation in any claim, right or remedy of Bank against any other Borrower or any collateral security which Bank now have or may hereafter acquire, whether or not such Trustor Party’s risk claim, right or remedy arises in equity, under the Loan Documents; and contract, by statute, under common law or otherwise (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations including without limitation under any and all laws of the State of California and federal lawssection 9.9 hereof).
Appears in 1 contract
Suretyship Waivers. 6.1. 6.1 In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal laws.
Appears in 1 contract
Samples: Deed of Trust (Cadiz Inc)
Suretyship Waivers. 6.1. In addition Bank and Borrowers acknowledge and agree that the intention of the parties is that each Borrower shall each be a direct and primary "BORROWER" with respect to all waivers expressed in obligations under the Credit ACL Agreement and the other Loan Documents, now or hereafter existing, whether such obligations result from borrowings by Trimont, Sierra or BMI. However, in the event that for any reason either Trimont, Sierra or BMI is held or deemed to be a guarantor of or surety for the extent that payment and performance by another Borrower of said Borrower's obligations under this Agreement or any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice Borrowers hereby waive:
a. All statutes of the existence, creation, or incurring of any new or additional obligations under or pursuant limitations as a defense to any of action or proceeding brought against Borrower by Bank, to the Loan Documents; (3) any fullest extent permitted by law;
b. Any right each Borrower may have to require Beneficiary Bank to proceed againstagainst the other Borrower, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security held from the other Borrower, or pursue any other remedy in Bank's power to proceed pursue; and, without limiting the foregoing, each Borrower waives all rights and defenses arising out of an election of remedies by Bank, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Borrower's rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or exhaust otherwise;
c. Any defense based on any claim that Borrower's obligations exceed or are more burdensome than those of the other Borrower;
d. Any defense based on: (i) any legal disability of the other Borrower, (ii) any release, discharge, modification, impairment or limitation of the liability of the other Borrower to Bank from any cause, whether consented to by Bank or arising by operation of law or from any bankruptcy or other voluntary or involuntary proceeding, relationships ("INSOLVENCY PROCEEDING") and (iii) any rejection or disaffirmance of the Loan, or any part of it, or any security held for it, in any particular order; (5) such Insolvency Proceeding;
e. Any defense based on any right action taken or omitted by Bank in any Insolvency Proceeding involving the other Borrower, including any election to require Beneficiary have Bank's claim allowed as being secured, partially secured or unsecured, any extension of credit by Bank to pursue the other Borrower in any remedy of Beneficiary; (6) any right to direct Insolvency Proceeding, and the application taking and holding by Bank of any security held by Beneficiary; (7) for any right such extension of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate credit;
f. Except as provided in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents Documents, all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance, and demands and notices of all Obligations secured by this Deed of Trust; (8) any every kind;
g. Any defense based on or arising out of any disability defense that the other Borrower may have to the payment of performance of the Loan or other any part of it; and
h. Any defense based on or arising out of the exercise by Bank of any Trustor Partyright or remedy under this Agreement or any other Loan Document that may or would, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, in combination with any previous or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement subsequent exercise by Bank of such liability; (9) any right to plead rights and remedies, impair or assert any election destroy Borrower's rights of remedies by Beneficiary; (10) any subrogation, reimbursement or contribution from or against the other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal lawsBorrower.
Appears in 1 contract
Samples: Agreement to Amend, Consolidate and Lend (Fibreboard Corp /De)
Suretyship Waivers. 6.1. In addition The liability of Mortgagor hereunder is limited to all waivers expressed its interest in the Credit Agreement and the other Loan Documents, to Property. To the extent that any Person comprising Trustor (a “Trustor Party”) the Mortgagor is construed as or constitutes held to be a surety with respect guarantor of the Borrower’s obligations to Lender, Mortgagor hereby waives any other Trustor Party, then the following provisions shall apply:
defense it may now or hereafter have that relates to or is founded on: (a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, the Borrower; (b) the cessation, impairment, modification, or limitation, from any causecause other than full performance, of the obligations of the Borrower; (c) the application of the proceeds of any liability of TrustorObligation, by the Borrower, for purposes other than the purposes represented to the Mortgagor, or otherwise intended or understood by the Mortgagor; (d) any act or omission by Lender which directly or indirectly results in or contributes to the release of the Borrower or any collateral for any Obligation; (e) the unenforceability or invalidity of any remedy for collateral assignment (other than this Mortgage) or guaranty with respect to any Obligation, or the enforcement lack of such liabilityperfection or continuing perfection or lack of priority of any lien (other than the lien hereof) which secures any Obligation; (9f) any right failure of Lender to plead marshal assets in favor of the Borrower or assert the Mortgagor; (g) any modification of any Obligation, including any renewal, extension, acceleration or increase in interest rate; (h) any election of remedies by BeneficiaryLender that impairs any subrogation or other right of Mortgagor to proceed against Borrower, including any loss of rights resulting from the foreclosure of real property or other laws limiting, qualifying or discharging obligations or remedies; (10i) any other defenses available to law which provides that the obligation of a surety under applicable law: 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; (11j) notice any failure of Lender to file or enforce a claim in any adverse change in the financial condition of any Trustor Party bankruptcy or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” proceeding with respect to any obligation shall mean person; (k) the payment election by Lender, in full in any bankruptcy proceeding of any person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code; (l) any extension of credit or the grant of any lien under Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code; (m) any use of cash collateral under Section 363 of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance United States Bankruptcy Code; (n) any agreement or other avoidance actions that may be applicable stipulation with respect to the circumstances provision of payment adequate protection in any bankruptcy proceeding of any person; or all of such obligations (o) any other rights or defenses afforded under any and all the laws of the State of California and federal lawsIllinois pertaining to sureties.
Appears in 1 contract
Suretyship Waivers. 6.1. In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party Borrower hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon upon:
(1a) promptness, diligence, presentment, demanddemand for payment, protest and notice of protest, notice of dishonor and of non-paymentdischarge, notice of acceptance of the Loan Documents, this Mortgage and diligence in collection; (2) any other notice of the existence, creation, with respect to this Mortgage or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; Secured Obligations;
(3b) any right to require Beneficiary to proceed againstrequirement that Agent (i) protect, give notice tosecure, perfect or insure any security interest or Lien or any property subject thereto, (ii) marshall any assets in favor of the other Borrowers or in payment of xxx xx all of the Secured Obligations, or make demand upon any other Trustor Party; (4iii) exhaust any right to require Beneficiary to proceed or take any action against or exhaust any security recourse against the other Borrowers or to proceed against any other Person or exhaust any security in collateral held by Agent at any particular order; (5) any right to require Beneficiary to time, or pursue any remedy in its power, before being entitled to payment or performance by the Borrower hereunder of Beneficiary; the Secured Obligations or before proceeding against such the Borrower hereunder;
(6c) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out by reason of any disability claim or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any based upon an election of remedies by Beneficiary; Agent (10including, without limitation, an election to nonjudicially foreclose on any real or personal property collateral) which in any manner impairs, reduces, releases or otherwise adversely affects the Borrower's subrogation, reimbursement or contribution rights or other rights to proceed against any other Borrower or any other Person or any collateral;
(d) the benefit of any statute of limitations affecting the liability of the Borrower or any other Person or the enforcement hereof;
(i) the incapacity, lack of authority or disability of the Borrower or any other Person, (ii) the revocation or repudiation of this Mortgage by the Borrower or any other Person (other than Agent), (iii) the failure of Agent to file or enforce a claim against the estate (either in administration, bankruptcy or any other proceeding) of the Borrower or any other Person, (iv) the lack of validity or unenforceability in whole or in part hereof or any other instrument, document or agreement referred to therein or herein, (v) Agent's election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 111(b)(2) of the Bankruptcy Code, or (vi) any other defenses available to defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code;
(f) any statute or rule of law which provides that the obligation of a surety under applicable law: must be neither larger in amount nor in any other respect more burdensome than that of a principal;
(11g) notice any taking, modification or release of any adverse change in collateral or guarantees for any Secured Obligation, or any failure to perfect any security interest in, or the financial condition taking of any Trustor Party or of failure to take any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” action with respect to any collateral securing payment of the Secured Obligations; or
(h) an offset by the Borrower against any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance now or other avoidance actions that may be applicable hereafter owed to the circumstances of Borrower by any other Borrower or any other Person; it being the intention hereof that the Borrower shall remain liable for the Secured Obligations as primary obligor until the full and timely payment of any or all of such obligations under any and all laws performance of the State Secured Obligations notwithstanding any act, omission or thing which might otherwise operate as a legal or equitable discharge of California a joint and federal lawsseveral obligor.
Appears in 1 contract
Suretyship Waivers. 6.18.14.1 Each Loan Party agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment and performance in full of the Obligations. In addition furtherance of the foregoing and without limiting the generality thereof, each Loan Party agrees as follows:
(i) Lender may from time to all waivers expressed in time, without notice or demand and without affecting the Credit validity or enforceability of this Agreement and or giving rise to any limitation, impairment or discharge of such Loan Party's liability hereunder, (A) renew, extend, accelerate or otherwise change the other Loan Documentstime, place, manner or terms of payment of the Obligations, (B) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Obligations or any agreement relating thereto and/or subordinate the payment of the same to the extent that payment of any other obligations, (C) request and accept guaranties of the Obligations and take and hold other security for the payment of the Obligations, (D) release, exchange, compromise, subordinate or modify, with or without consideration, any other security for payment of the Obligations, any guaranties of the Obligations, or any other obligation of any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to the Obligations, (E) enforce and apply any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary or for the benefit of Lender in respect of the Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that Lender may have against any such security, as Lenders in their discretion may determine consistent with this Agreement and any other Loan Document including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and (F) exercise any other rights available to Lender under the Loan Documents, at law or in equity; and (ii) this Agreement and the obligations of each Loan Party hereunder shall be valid and enforceable and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of the Obligations), including without limitation the occurrence of any of the following, whether or not any Loan Party shall have had notice or knowledge of any of them: (A) any failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations or any agreement relating thereto, or with respect to any guaranty of or other security for the payment of the Obligations, (B) any waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of the Credit Agreement, any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any guaranty or other security for the Obligations, (C) the Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (D) the application of payments received from any source to the payment of indebtedness other than the Obligations, even though Lender might have elected to apply such payment to any part or all of the Obligations, (E) any failure to perfect or continue perfection of a security interest in any other collateral which secures any of the Obligations, (F) any defenses, set-offs or counterclaims which any other Loan Party may allege or assert against any Lender in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury, and (G) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Loan Party as an obligor in respect of the Obligations.
8.14.2 Each Loan Party waives, for the benefit of Lender: (i) any right to reimbursement require Lender, as a condition of payment or performance by such Loan Party, to (A) proceed against any other Loan Party, any guarantor of the Obligations or any other Person, (B) proceed against or exhaust any other security held from any other Person comprising Trustor for amounts paid to Beneficiary by Loan Party, any guarantor of the Obligations or any other Trustor Person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of Lender in favor of any Loan Party at or any time prior to other Person, or (D) pursue any other remedy in the Payment in Full (as hereinafter defined) power of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of TrustLender whatsoever; (8) ii) any defense arising out by reason of the incapacity, lack of authority or any disability or other defense of any Trustor Loan Party including, without limitation, any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any Loan Party from any cause other than payment in full of the Obligations; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon Lender's errors or omissions in the administration of the Obligations, except behavior which amounts to bad faith; (v)
(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and any legal or equitable discharge of such Loan Party's obligations hereunder, (B) the benefit of any statute of limitations affecting such Loan Party's liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that Lender protect, secure, perfect or insure any other security interest or lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, notices of default under the Credit Agreement or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to Loan Parties and notices of any of the matters referred to in the preceding paragraph and any right to consent to any thereof; and (vii) to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Agreement.
8.14.3 Until the Obligations shall have been paid in full, each Loan Party shall withhold exercise of (i) any claim, right or remedy, direct or indirect, that such Loan Party now has or may hereafter have against any other Loan Party or any of its assets in connection with this Agreement or the performance by any other Loan Party of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (A) any right of subrogation, reimbursement or indemnification that any Loan Party now has or may hereafter have against any other Loan Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9B) any right to plead enforce, or assert to participate in, any election of remedies by Beneficiary; claim, right or remedy that Lender now has or may hereafter have against any Loan Party, and (10C) any benefit of, and any right to participate in, any other defenses available collateral or security now or hereafter held by Lender, and (ii) any right of contribution any Loan Party may have against any guarantor of the Obligations. Each Loan Party further agrees that, to the extent the waiver of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a surety under applicable law: (11) notice court of competent jurisdiction to be void or voidable for any adverse change in the financial condition reason, any rights of subrogation, reimbursement or indemnification such Loan Party may have against any Trustor other Loan Party or of against any other fact that might increase collateral or security, and any rights of contribution such Trustor Party’s risk under the Loan Documents; Party may have against any such guarantor, shall be junior and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect subordinate to any obligation shall mean the payment rights Lender may have against any Loan Party, to all right, title and interest Lender may have in full in cash of all any such obligations other collateral or security, and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that to any right Lender may be applicable to the circumstances of payment of have against any or all of such obligations under any and all laws of the State of California and federal lawsguarantor.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Royale Investments Inc)
Suretyship Waivers. 6.1. In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent Each Co-Borrower hereby agrees that any Person comprising Trustor (a “Trustor Party”) is construed as its obligations hereunder shall not be affected or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowinglyimpaired by, and expressly hereby waives and agrees not to assert or take advantage of any defense based upon on:
(1a) presentment, demand, protest and notice any statute of protest, notice of dishonor and of non-payment, notice of acceptance limitations in any action hereunder or for the collection of the Loan DocumentsNotes or for the payment or performance of any obligation hereby guaranteed;
(b) the incapacity or lack of authority of Borrower or any other person or entity;
(c) the dissolution or termination of existence of Borrower;
(d) the voluntary or involuntary liquidation, and diligence in collection; sale or other disposition of all or substantially all of the assets of Borrower;
(2e) the voluntary or involuntary receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, assignment, composition, or readjustment of, or any similar proceeding affecting, Borrower or any Co-Borrower, or any of Borrower's or any Co-Borrower's properties or assets;
(f) the damage, destruction, condemnation, foreclosure or surrender of all or any part of the Unencumbered Properties or the improvements thereon;
(g) the failure of Agent or Lenders to give notice of the existence, creation, creation or incurring of any new or additional indebtedness or obligation or of any action or nonaction on the part of any other person whomsoever in connection with any obligation hereby guaranteed;
(h) any failure or delay of Agent or Lenders to commence an action against Borrower, to assert or enforce any remedies against Borrower under the Notes or the Loan Documents, or to realize upon any security;
(i) any failure of any duty on the part of Agent or Lenders to disclose to any Co-Borrower any facts it may now or hereafter know regarding Borrower, whether such facts materially increase the risk to such Co-Borrower or not;
(j) failure to accept or give notice of acceptance of this Agreement or any Note by Agent or Lenders;
(k) failure to make or give notice of presentment and demand for payment of any of the indebtedness or performance of any of the obligations under hereby guaranteed;
(l) failure to make or pursuant give protest and notice of dishonor or of default to any Co-Borrower or to any other party with respect to the indebtedness or performance of obligations hereby guaranteed;
(m) any and all other notices whatsoever to which any Co-Borrower might otherwise be entitled;
(n) any lack of diligence by Agent or Lenders in collection of obligations hereby guaranteed;
(o) the invalidity or unenforceability of the Notes or any of the Loan Documents; ;
(3p) any right to require Beneficiary to proceed againstthe compromise, give notice tosettlement, release or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment termination of any or all of such the obligations of Borrower under the Notes or the Loan Documents;
(q) any exculpation of liability contained in the Notes or in the Loan Documents;
(r) any transfer by Borrower or any of its subsidiaries of all or any part of their assets;
(s) to the full extent permitted by law any and all laws other legal, equitable or surety defenses whatsoever to which any Co-Borrower might otherwise be entitled, it being the intention that the obligations of the State of California all Co-Borrowers hereunder are absolute, unconditional and federal lawsirrevocable.
Appears in 1 contract
Samples: Credit Agreement (Liberty Property Limited Partnership)
Suretyship Waivers. 6.17.12.1 Mortgagor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment and performance in full of the Obligations. In addition furtherance of the foregoing and without limiting the generality thereof, each Loan Party agrees as follows:
(i) Lender may from time to all waivers expressed in time, without notice or demand and without affecting the Credit validity or enforceability of this Agreement and or giving rise to any limitation, impairment or discharge of such Loan Party's liability hereunder, (A) renew, extend, accelerate or otherwise change the other Loan Documentstime, place, manner or terms of payment of the Obligations, (B) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Obligations or any agreement relating thereto and/or subordinate the payment of the same to the extent that payment of any other obligations, (C) request and accept guaranties of the Obligations and take and hold other security for the payment of the Obligations, (D) release, exchange, compromise, subordinate or modify, with or without consideration, any other security for payment of the Obligations, any guaranties of the Obligations, or any other obligation of any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to the Obligations, (E) enforce and apply any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary or for the benefit of Lender in respect of the Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that Lender may have against any such security, as Lenders in their discretion may determine consistent with this Agreement and any other Loan Document including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and (F) exercise any other rights available to Lender under the Loan Documents, at law or in equity; and (ii) this Agreement and the obligations of each Loan Party hereunder shall be valid and enforceable and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of the Obligations), including without limitation the occurrence of any of the following, whether or not any Loan Party shall have had notice or knowledge of any of them: (A) any failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations or any agreement relating thereto, or with respect to any guaranty of or other security for the payment of the Obligations, (B) any waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of the Credit Agreement, any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any guaranty or other security for the Obligations, (C) the Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (D) the application of payments received from any source to the payment of indebtedness other than the Obligations, even though Lender might have elected to apply such payment to any part or all of the Obligations, (E) any failure to perfect or continue perfection of a security interest in any other collateral which secures any of the Obligations, (F) any defenses, set-offs or counterclaims which any other Loan Party may allege or assert against any Lender in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury, and (G) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Loan Party as an obligor in respect of the Obligations.
7.12.2 Each Loan Party waives, for the benefit of Lender: (i) any right to reimbursement require Lender, as a condition of payment or performance by such Loan Party, to (A) proceed against any other Loan Party, any guarantor of the Obligations or any other Person, (B) proceed against or exhaust any other security held from any other Person comprising Trustor for amounts paid to Beneficiary by Loan Party, any guarantor of the Obligations or any other Trustor Person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of Lender in favor of any Loan Party at or any time prior to other Person, or (D) pursue any other remedy in the Payment in Full (as hereinafter defined) power of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of TrustLender whatsoever; (8) ii) any defense arising out by reason of the incapacity, lack of authority or any disability or other defense of any Trustor Loan Party including, without limitation, any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any Loan Party from any cause other than payment in full of the Obligations; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon Lender's errors or omissions in the administration of the Obligations, except behavior which amounts to bad faith; (v)
(A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and any legal or equitable discharge of such Loan Party's obligations hereunder, (B) the benefit of any statute of limitations affecting such Loan Party's liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that Lender protect, secure, perfect or insure any other security interest or lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, notices of default under the Credit Agreement or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to Loan Parties and notices of any of the matters referred to in the preceding paragraph and any right to consent to any thereof; and (vii) to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Agreement.
7.12.3 Until the Obligations shall have been paid in full, each Loan Party shall withhold exercise of (i) any claim, right or remedy, direct or indirect, that such Loan Party now has or may hereafter have against any other Loan Party or any of its assets in connection with this Agreement or the performance by any other Loan Party of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (A) any right of subrogation, reimbursement or indemnification that any Loan Party now has or may hereafter have against any other Loan Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9B) any right to plead enforce, or assert to participate in, any election of remedies by Beneficiary; claim, right or remedy that Lender now has or may hereafter have against any Loan Party, and (10C) any benefit of, and any right to participate in, any other defenses available collateral or security now or hereafter held by Lender, and (ii) any right of contribution any Loan Party may have against any guarantor of the Obligations. Each Loan Party further agrees that, to the extent the waiver of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a surety under applicable law: (11) notice court of competent jurisdiction to be void or voidable for any adverse change in the financial condition reason, any rights of subrogation, reimbursement or indemnification such Loan Party may have against any Trustor other Loan Party or of against any other fact that might increase collateral or security, and any rights of contribution such Trustor Party’s risk under the Loan Documents; Party may have against any such guarantor, shall be junior and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect subordinate to any obligation shall mean the payment rights Lender may have against any Loan Party, to all right, title and interest Lender may have in full in cash of all any such obligations other collateral or security, and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that to any right Lender may be applicable to the circumstances of payment of have against any or all of such obligations under any and all laws of the State of California and federal lawsguarantor.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Assignment of Rents and Leases (Sandhills Inc)
Suretyship Waivers. 6.1. In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Loan Party hereby absolutelyagrees that its obligations hereunder are irrevocable, unconditionallyabsolute, knowingly, independent and expressly waives unconditional and agrees shall not to assert be affected by any circumstance which constitutes a legal or take advantage equitable discharge of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance a guarantor or surety other than payment in full of the Loan Documents, and diligence in collection; (2) notice Obligations. In furtherance of the existenceforegoing and without limiting the generality thereof, creationeach Loan Party agrees as follows:
(i) Agent, Term Loan Agent or any Lender may from time to time, without notice or demand and without affecting the validity or enforceability of this Agreement or giving rise to any limitation, impairment or discharge of such Loan Party’s liability hereunder, (A) renew, extend, accelerate or otherwise change the time, place, manner or terms of payment of the Obligations, (B) settle, compromise, release or discharge, or incurring accept or refuse any offer of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice performance with respect to, or make demand upon substitutions for, the Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other Trustor Party; obligations, (4C) request and accept guaranties of the Obligations and take and hold other security for the payment of the Obligations, (D) release, exchange, compromise, subordinate or modify, with or without consideration, any right to require Beneficiary to proceed against other security for payment of the Obligations, any guaranties of the Obligations, or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application other obligation of any security held by Beneficiary; Person with respect to the Obligations, (7E) any right of subrogation or to enforce any remedy which Beneficiary may have against and apply any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary or for the benefit of Agent, Term Loan Agent or any Lender in respect of the Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that Agent, Term Loan Agent or Lenders, or any of them, may have against any such security, as Agent in its discretion may determine consistent with this Agreement and any applicable security document, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and (F) exercise any other rights available to Agent, Term Loan Agent or Lenders, or any of them, under the Financing Agreements, at law or in equity; and (ii) this Agreement and the obligations of each Loan Party hereunder shall be valid and enforceable and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of the Obligations), including without limitation the occurrence of any of the following, whether or not such Loan Party shall have had notice or knowledge of any of them: (A) any failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations or any agreement relating thereto, or with respect to any guaranty of or other security for the payment of the Obligations, (B) any waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of this Agreement, any of the other Financing Agreements, or any agreement or instrument executed pursuant thereto, or of any guaranty or other security for the Obligations, (C) the Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (D) the application of payments received from any source to the payment of indebtedness other than the Obligations, even though Agent, Term Loan Agent or Lenders or any of them, might have elected to apply such payment to any part or all of the Obligations, (E) any failure to perfect or continue perfection of a security interest in any other collateral which secures any of the Obligations, (F) any defenses, set-offs or counterclaims which any Loan Party may allege or assert against Agent, Term Loan Agent or any Lender in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury, and (G) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Loan Party as an obligor in respect of the Obligations.
(b) Each Loan Party hereby waives, for the benefit of Lenders, Agent and Term Loan Agent: (i) any right to reimbursement from require Agent, Term Loan Agent or Lenders, as a condition of payment or performance by such Loan Party, to (A) proceed against Parent, any guarantor of the Obligations or any other Person comprising Trustor for amounts paid to Beneficiary by Person, (B) proceed against or exhaust any other Trustor Party at security held from Parent, any time prior guarantor of the Obligations or any other Person, (C) proceed against or have resort to any balance of any deposit account or credit on the Payment books of Agent or any Lender in Full favor of Parent or any other Person, or (as hereinafter definedD) pursue any other remedy in the power of all obligations of Trustor under the Agent, Term Loan Documents and of all Obligations secured by this Deed of TrustAgent or any Lender whatsoever; (8) ii) any defense arising out by reason of the incapacity, lack of authority or any disability or other defense of any Trustor PartyLoan Parties including, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or without limitation, any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Loan Parties from any causecause other than payment in full of the Obligations; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon Agent’s, Term Loan Agent’s or any Lender’s errors or omissions in the administration of the Obligations, except behavior which amounts to bad faith; (v) (A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and any legal or equitable discharge of such Loan Party’s obligations hereunder, (B) the benefit of any statute of limitations affecting such Loan Party’s liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that Agent, Term Loan Agent or any Lender protect, secure, perfect or insure any other security interest or lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of Trustorprotest, or notices of dishonor and notices of any remedy for action or inaction, notices of default under this Agreement or any agreement or instrument related thereto, notices of any renewal, extension or modification of the enforcement Obligations or any agreement related thereto, notices of such liability; (9) any extension of credit to Parent or any other Loan Party and notices of any of the matters referred to in the preceding paragraph and any right to plead consent to any thereof; and (vii) to the fullest extent permitted by law, any defenses or assert benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Agreement.
(c) As used in this Section 5.3, any election reference to “the principal” includes Parent and each Loan Party, and any reference to “the creditor” includes Agent, Term Loan Agent and each Lender. In accordance with Section 2856 of remedies by Beneficiary; the California Civil Code (10a) each Loan Party waives any other and all rights and defenses available to a surety under applicable law: (11) notice Loan Party by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Civil Code, including without limitation any adverse change in and all rights or defenses such Loan Party may have by reason of protection afforded to the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” principal with respect to any obligation shall mean of the payment Obligations, or to any guarantor of any of the Obligations with respect to any of such guarantor’s obligations under its guaranty, in full in cash of all such obligations and either case pursuant to the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance antideficiency or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California limiting or discharging the principal’s indebtedness or such guarantor’s obligations, including without limitation Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure; and federal laws(b) each Loan Party waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for any of the Obligations, has destroyed such Loan Party’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the Code of Civil Procedure or otherwise; and even though that election of remedies by the creditor, such as nonjudicial foreclosure with respect to security for an obligation of any guarantor of any of the Obligations, has destroyed such Loan Party’s rights of contribution against such guarantor. No other provision of this Agreement shall be construed as limiting the generality of any of the covenants and waivers set forth in this Section 5.3. As provided herein, this Agreement shall be governed by, and shall be construed and enforced in accordance with, the internal laws of the State of New York, without regard to conflicts of laws principles. This Section 5.3 is included solely out of an abundance of caution, and shall not be construed to mean that any of the above-referenced provisions of California law are in any way applicable to this Agreement or to any of the Obligations.
(d) Until the Obligations shall have been paid in full and the Commitments shall have terminated and all Letters of Credit Accommodations shall have expired or been cancelled, each Loan Party shall withhold exercise of (i) any claim, right or remedy, direct or indirect, that such Loan Party now has or may hereafter have against any other Loan Party or any of its assets in connection with this Agreement or the performance by such Loan Party of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (A) any right of subrogation, reimbursement or indemnification that a Loan Party now has or may hereafter have against Parent or any other Loan Party, (B) any right to enforce, or to participate in, any claim, right or remedy that Agent, Term Loan Agent or any Lender now has or may hereafter have against Parent or any other Loan Party, and (C) any benefit of, and any right to participate in, any other collateral or security now or hereafter held by Agent, Term Loan Agent or any Lender, and (ii) any right of contribution such Loan Party may have against any guarantor of the Obligations. Each Loan Party further agrees that, to the extent the waiver of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Loan Party may have against Parent or any other Loan Party or against any other collateral or security, and any rights of contribution such Loan Party may have against any such guarantor, shall be junior and subordinate to any rights Agent, Term Loan Agent or Lenders may have against Parent or any other Loan Party, to all right, title and interest Agent, Term Loan Agent or Lenders may have in any such other collateral or security, and to any right Agent, Term Loan Agent or Lenders may have against any such guarantor.
(e) Lenders, Term Loan Agent and Agent shall have no obligation to disclose or discuss with any Loan Party their assessment, or such Loan Party’s assessment, of the financial condition of Parent or any other Loan Party. Each Loan Party has adequate means to obtain information from each other Loan Party on a continuing basis concerning the financial condition of Parent and each other Loan Party and its ability to perform its obligations under the Financing Agreements, and such Loan Party assumes the responsibility for being and keeping informed of the financial condition of Parent and each other Loan Party and of all circumstances bearing upon the risk of nonpayment of the Obligations. Each Loan Party hereby waives and relinquishes any duty on the part of Agent, Term Loan Agent or any Lender to disclose any matter, fact or thing relating to the business, operations or condition of Parent or any other Loan Party now known or hereafter known by Agent, Term Loan Agent or any Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Remy International, Inc.)
Suretyship Waivers. 6.1. In addition to all waivers expressed in Each Borrower hereby expressly waives (i) diligence, presentment, demand for payment, protest, benefit of any statute of limitations affecting such Borrower’s liability under the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor ; (a “Trustor Party”ii) is construed as or constitutes a surety with respect discharge due to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage disability of any defense based upon Borrower; (1iii) presentmentany defenses of any Borrower to obligations under the Loan Documents not arising under the express terms of the Loan Documents or from a material breach thereof by Borrower which under applicable law has the effect of discharging any Borrower from the Obligations as to which this Agreement is sought to be enforced; (iv) the benefit of any act or omission by Borrower which directly or indirectly results in or aids the discharge of any Borrower from any of the Obligations by operation of law or otherwise; (v) except as expressly provided herein, demandall notices whatsoever, protest and notice of protestincluding, notice of dishonor and of non-paymentwithout limitation, notice of acceptance of the Loan Documents, and diligence in collectionincurring of the Obligations; (2vi) notice any right it may have to require Borrower to disclose to it any information that Borrower may now or hereafter acquire concerning the financial condition or any circumstances that bears on the risk of nonpayment by any other Borrower, including, without limitation, the existencerelease of such other Borrower from its Obligations hereunder; and (vii) any requirement that Borrower exhaust any right, creationpower or remedy or proceed against any other Borrower or any other security for, or incurring of any new guarantor of, or additional obligations under or pursuant to any other party liable for, any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice toObligations, or make demand upon any other Trustor Party; portion thereof. Each Borrower specifically agrees that it shall not be necessary or required, and Borrowers shall not be entitled to require, that Borrower (4i) any right file suit or proceed to require Beneficiary to proceed against assert or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have obtain a claim for personal judgment against any other Trustor Party and Borrower for all or any right part of the Obligations; (ii) make any effort at collection or enforcement of all or any part of the Obligations from any Borrower; (iii) foreclose against or seek to participate in realize upon any security now or hereafter held by Beneficiary and existing for all or any right part of the Obligations; (iv) file suit or proceed to reimbursement from obtain or assert a claim for personal judgment against any Borrower or any guarantor or other party liable for all or any part of the Obligations; (v) exercise or assert any other Person comprising Trustor for amounts paid right or remedy to Beneficiary by which Borrower is or may be entitled in connection with the Obligations or any security or guaranty relating thereto to assert; or (vi) file any claim against assets of one Borrower before or as a condition of enforcing the liability of any other Trustor Party Borrower under this Agreement or the Notes. Without limiting the generality of the foregoing, each Borrower expressly waives the benefit of California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848 (until such time as the Obligations are satisfied in full), 2849 (until such time as the Obligations are satisfied in full), 2850, 2899 and 1432. WITHOUT LIMITING THE FOREGOING IN ANY WAY, EACH BORROWER HEREBY IRREVOCABLY WAIVES AND RELEASES:
(A) Any and all rights it may have at any time prior (whether arising directly or indirectly, by operation of law, contract or otherwise) to require the Payment marshaling of any assets of any Borrower, which right of marshaling might otherwise arise from any such payments made or obligations performed;
(B) Until such time as the obligations have been satisfied in Full (as hereinafter defined) of full, any and all obligations of Trustor rights that would result in such Borrower being deemed a “creditor” under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or bankruptcy code of any other fact Borrower or any other person, on account of payments made or obligations performed by such Borrower; and
(C) Until such time as the obligations have been satisfied in full, any claim, right or remedy which it may now have or hereafter acquire against any other Borrower that might increase arises hereunder and/or from the performance by it hereunder including, without limitation, any claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification or participation in any claim, right or remedy of Bank against any other Borrower or any collateral security which Bank now have or may hereafter acquire, whether or not such Trustor Party’s risk claim, right or remedy arises in equity, under the Loan Documents; and contract, by statute, under common law or otherwise (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations including without limitation under any and all laws of the State of California and federal lawssection 9.9 hereof).
Appears in 1 contract
Suretyship Waivers. 6.1. In addition to all waivers expressed in 13.1 Each Borrower hereby expressly waives (a) diligence, presentment, demand for payment, protest, benefit of any statute of limitations affecting such Borrower’s liability under the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor ; (a “Trustor Party”b) is construed as or constitutes a surety with respect discharge due to any disability of any Borrower; (c) any defenses of any Borrower to obligations under the Loan Documents not arising under the express terms of the Loan Documents or from a material breach thereof by Bank which under applicable law has the effect of discharging any Borrower from the Obligations as to which this Agreement is sought to be enforced; (d) the benefit of any act or omission by Bank which directly or indirectly results in or aids the discharge of any Borrower from any of the Obligations by operation of law or otherwise; (e) except as expressly provided herein, all notices whatsoever, including notice of acceptance of the incurring of the Obligations; (f) any right it may have to require Bank to disclose to it any information that Bank may now or hereafter acquire concerning the financial condition or any circumstances that bears on the risk of nonpayment by any other Trustor PartyBorrower, then including the following provisions release of such other Borrower from its Obligations hereunder; and (g) any requirement that Bank exhaust any right, power or remedy or proceed against any other Borrower or any other security for, or any guarantor of, or any other party liable for, any of the Obligations, or any portion thereof. Each Borrower specifically agrees that it shall applynot be necessary or required, and Borrowers shall not be entitled to require, that Bank (i) file suit or proceed to assert or obtain a claim for personal judgment against any other Borrower for all or any part of the Obligations; (ii) make any effort at collection or enforcement of all or any part of the Obligations from any Borrower; (iii) foreclose against or seek to realize upon the Collateral or any other security now or hereafter existing for all or any part of the Obligations; (iv) file suit or proceed to obtain or assert a claim for personal judgment against any Borrower or any guarantor or other party liable for all or any part of the Obligations; (v) exercise or assert any other right or remedy to which Bank is or may be entitled in connection with the Obligations or any security or guaranty relating thereto to assert; or (vi) file any claim against assets of one Borrower before or as a condition of enforcing the liability of any other Borrower under this Agreement. Without limiting the generality of the foregoing, each Borrower expressly waives the benefit of California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848, 2849, 2850, 2899 and 1432. WITHOUT LIMITING THE FOREGOING IN ANY WAY, EACH BORROWER HEREBY IRREVOCABLY WAIVES AND RELEASES:
(a) Each Trustor Party hereby absolutelyAny and all rights it may have at any time (whether arising directly or indirectly, unconditionallyby operation of law, knowingly, and expressly waives and agrees not contract or otherwise) to assert or take advantage require the marshaling of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring assets of any new Borrower, which right of marshaling might otherwise arise from any such payments made or additional obligations performed;
(b) Any and all rights that would result in such Borrower being deemed a “creditor” under or pursuant to any the United States Code of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor PartyBorrower or any other Person, on account of payments made or obligations performed by such Borrower; and
(4c) Until such time as the Obligations have been satisfied in full, any claim, right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary it may now have or hereafter acquire against any other Trustor Party and Borrower that arises hereunder and/or from the performance by it hereunder including any claim, remedy or right to participate of subrogation, reimbursement, exoneration, contribution, indemnification, or participation in any security now claim, right or hereafter held by Beneficiary and any right to reimbursement from remedy of Bank against any other Person comprising Trustor for amounts paid to Beneficiary Borrower or any collateral security which Bank now has or may hereafter acquire, whether or not such claim, right or remedy arises in equity, under contract, by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor statute, under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability common law or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal lawsotherwise.
Appears in 1 contract
Suretyship Waivers. 6.1Each Person that is defined as a Borrower in this Agreement shall be jointly and severally liable for all obligations hereunder. In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent that any Each such Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
hereby expressly waives (a) Each Trustor Party hereby absolutelydiligence, unconditionallypresentment, knowinglydemand for payment, and expressly waives and agrees not to assert or take advantage protest, benefit of any defense based upon statute of limitations affecting such Person’s liability under the Loan Documents; (1b) presentmentdischarge due to any disability of any Borrower; (c) any defenses of any Borrower to obligations under the Loan Documents not arising under the express terms of the Loan Documents or from a material breach thereof by Lender which under applicable law has the effect of discharging any Borrower from the Obligations as to which this Agreement or any other Loan Document is sought to be enforced; (d) the benefit of any act or omission by Lender which directly or indirectly results in or aids the discharge of any Borrower from any of the Obligations by operation of law or otherwise; (e) except as expressly provided herein, demandall notices whatsoever, protest and notice of protest, notice of dishonor and of non-payment, including notice of acceptance of the Loan Documents, and diligence in collectionincurring of the Obligations; (2f) notice any right it may have to require Lender to disclose to it any information that Lender may now or hereafter acquire concerning the financial condition or any circumstances that bears on the risk of nonpayment by any other Borrower, including the existencerelease of such other Borrower from its Obligations hereunder; and (g) any requirement that Lender exhaust any right, creationpower or remedy or proceed against any other Borrower or any other security for, or incurring of any new guarantor of, or additional obligations under or pursuant to any other party liable for, any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice toObligations, or make demand upon any other Trustor Party; portion thereof. Each Borrower specifically agrees that it shall not be necessary or required, and Borrower shall not be entitled to require, that Lender (4i) any right file suit or proceed to require Beneficiary to proceed against assert or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have obtain a claim for personal judgment against any other Trustor Party and Borrower for all or any right part of the Obligations; (ii) make any effort at collection or enforcement of all or any part of the Obligations from any Borrower; (iii) foreclose against or seek to participate in realize upon the Collateral or any other security now or hereafter held by Beneficiary and existing for all or any right part of the Obligations; (iv) file suit or proceed to reimbursement from obtain or assert a claim for personal judgment against any Borrower or any guarantor or other party liable for all or any part of the Obligations; (v) exercise or assert any other Person comprising Trustor for amounts paid right or remedy to Beneficiary by which Lender is or may be entitled in connection with the Obligations or any security or guaranty relating thereto to assert; or (vi) file any claim against assets of one Borrower before or as a condition of enforcing the liability of any other Trustor Party Borrower under this Agreement. WITHOUT LIMITING THE FOREGOING IN ANY WAY, EACH PERSON THAT IS DEFINED AS A BORROWER IN THIS AGREEMENT HEREBY IRREVOCABLY WAIVES AND RELEASES:
(i) Any and all rights it may have at any time prior (whether arising directly or indirectly, by operation of law, contract or otherwise) to require the Payment marshaling of any assets of any Borrower, which right of marshaling might otherwise arise from any such payments made or obligations performed;
(ii) Any and all rights that would result in Full (as hereinafter defined) of all obligations of Trustor such Person being deemed a “creditor” under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or United States Code of any other fact that might increase Borrower or any other Person, on account of payments made or obligations performed by such Trustor Party’s risk under the Loan DocumentsPerson; and (12) all notices (except if Until such notice is specifically required to be given to time as the Obligations have been satisfied in full, any claim, right or remedy which it may now have or hereafter acquire against any other Borrower that arises hereunder and/or from the performance by it hereunder including any claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification, or participation in any claim, right or remedy of Lender against any Borrower or any collateral security which Lender now has or may hereafter acquire, whether or not such Trustor Party) and demands to which Trustor might otherwise be entitled. As used hereinclaim, the term “Payment right or remedy arises in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preferenceequity, fraudulent conveyance under contract, by statute, under common law or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal lawsotherwise.
Appears in 1 contract
Suretyship Waivers. 6.1. In addition to all waivers expressed in Each Borrower hereby expressly waives (a) diligence, presentment, demand for payment, protest, benefit of any statute of limitations affecting any other Borrower's liability under, or the Credit enforcement of, this Agreement and or any of the other Loan Documents, to the extent that any Person comprising Trustor ; (a “Trustor Party”b) is construed as or constitutes a surety with respect discharge due to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage disability of any defense based upon other Borrower or any other guarantor of the Obligations; (1c) presentmentany defenses of any other Borrower to Obligations not arising under the express terms of the Loan Documents or from a material breach thereof by the Bank which under applicable law has the effect of discharging such other Borrower from the Obligations; (d) the benefit of any act or omission by the Bank which directly or indirectly results in or aids the discharge of any Borrower from any of the Obligations by operation of law or otherwise; (e) all notices whatsoever, demandincluding, protest and notice of protest, notice of dishonor and of non-paymentwithout limitation, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, this Agreement or incurring of any new or additional obligations under or pursuant to any of the other Loan DocumentsDocuments and the incurring of the Obligations; and (3f) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or requirement that the Bank exhaust any security right, power or to remedy or proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party Borrower or any other collateral security for, or any other guarantor of, or any other party liable for, any of the Obligations, or any portion thereof. Each Borrower specifically agrees that it shall not be necessary or required, and each Borrower shall not be entitled to require, that Bank (i) file suit or proceed to assert or obtain a claim for personal judgment against any right other Borrower, for all or any part of the Obligations; (ii) make any effort at collection or enforcement of all or any part of the Obligations from any other Borrower; (iii) foreclose against or seek to participate in realize upon the collateral pledged under any guaranty or any other collateral security now or hereafter held by Beneficiary and existing for all or any right part of the Obligations; (iv) file suit or proceed to reimbursement from obtain or assert a claim for personal judgment against any other Person comprising Trustor for amounts paid to Beneficiary by Borrower or any other Trustor Party at guarantor or other party liable for all or any time prior to part of the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of TrustObligations; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9v) any right to plead exercise or assert any election of remedies by Beneficiaryother right or remedy to which the Bank is or may be entitled in connection with the Obligations or any collateral security or guaranty relating thereto to assert; or (10vi) file any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or claim against assets of any other fact that might increase such Trustor Party’s risk Borrower before or as a condition of enforcing the liability of any Borrower under this Agreement or any of the other Loan Documents; and (12) all notices (except if such notice is specifically required . Without limiting the generality of the foregoing, each Borrower expressly waives, to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used hereinthe extent permitted by law, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State benefit of California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848, 2849, 2850, 2899 and federal laws1432.
Appears in 1 contract
Suretyship Waivers. 6.1This mortgage secures an obligation of payment and not of collection, and the Grantor agrees that the Lender's recourse on this Mortgage shall be immediate at any time after the Liabilities or any part thereof have not been paid when due (whether by acceleration or otherwise) or the Grantor or the Borrower has defaulted or otherwise failed to perform when due any of its obligations, covenants, representations or warranties to the Lender. In addition to all waivers expressed The Lender's rights under this Mortgage shall not be contingent upon the exercise or enforcement by the Lender of whatever remedies it may have against the Borrower or others, or the enforcement of any other lien or realization upon any other security or collateral the Lender may at any time possess. Any one or more successive and/or concurrent actions may be brought hereon against Grantor either in the Credit Agreement and same action, if any, brought against Borrower or in separate actions, as often as the Lender, in its sole discretion, may deem advisable. No election to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of the Lender's right to proceed in any other Loan Documentsform of action or proceeding or against other parties unless the Lender has expressly waived such right in writing. Specifically, but without limiting the generality of the foregoing, no action or proceeding by the Lender against Borrower under any document or instrument evidencing or securing the Liabilities shall serve to diminish the rights of the Lender under this Mortgage, except to the extent that the Lender realizes payment by such action or proceeding, notwithstanding the effect of any Person comprising Trustor such action or proceeding upon Grantor's right of subrogation against Borrower, if any.
(a) any amendment, alteration, extension, renewal, waiver, indulgence or other modification of the Liabilities; (b) any settlement or compromise in connection with the Liabilities; (c) any subordination of payments under the Liabilities to any other debt or claim; (d) any substitution, exchange, release or other disposition of all or any part of any collateral for the Liabilities; (e) any failure, delay, neglect, act or omission by the Lender to act in connection with the Liabilities; (f) any advances for the purpose of performing any covenant or agreement of the Borrower, or curing any breach; (g) the filing by or against Borrower of Lenderruptcy, insolvency, reorganization or other debtor's relief afforded Borrower pursuant to the present or future provisions of the Lenderruptcy Code or any other state or federal statute or by the decision of any court; or (h) any other matter whether similar or dissimilar to the foregoing. The obligations of Grantor are unconditional, notwithstanding any defect in the genuineness, validity, regularity or enforceability of the Liabilities or any other circumstances whether or not referred to herein, which might otherwise constitute a “Trustor Party”) is construed as legal or constitutes equitable discharge or defense of a surety or Grantor. The Grantor hereby waives each and every defense which, under principles of suretyship law or otherwise, would otherwise operate to impair or diminish the liability of Grantor or the rights of the Lender hereunder, including, without limitation: (a) notice of acceptance of this Mortgage and of creations of Liabilities of Borrower to the Lender;
(b) any subrogation to the rights of the Lender against Borrower until the Liabilities have been paid in full;
(c) presentment and demand for payment of any Liabilities of Borrower; (d) protest, notice of protest, and notice of dishonor or default to the Grantor or to any other party with respect to any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collectionLiabilities; (2e) notice of all other notices to which the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan DocumentsGrantor might otherwise be entitled; (3f) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Partyfor payment under this Mortgage; (4g) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out by reason of any disability or other defense of Borrower by reason of the cessation from any Trustor Partycause whatsoever of the liability of the Borrower; (h) any rights to extension, including bankruptcy, dissolution, liquidation, cessation, impairment, modificationcomposition or otherwise under the Lenderruptcy Code or any amendments thereof, or limitation, from under any cause, of any liability of Trustor, state or of any remedy for the enforcement of such liabilityother federal statute; and (9i) any right or claim or claim of right to plead cause a marshalling of Borrower's assets. No notice to or assert any election demand on the Grantor shall be deemed to be a waiver of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice the obligations of any adverse change in the financial condition of any Trustor Party Grantor or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws right of the State of California and federal lawsLender to take further action without notice or demand as provided herein.
Appears in 1 contract
Samples: Commercial Mortgage (Meadowbrook Insurance Group Inc)
Suretyship Waivers. 6.17.12.1 Grantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment and performance in full of the Obligations. In addition furtherance of the foregoing and without limiting the generality thereof, Grantor agrees that Grantee may from time to all waivers expressed in time, without notice or demand and without affecting the Credit Agreement and validity or enforceability of this Deed to Secure Debt or giving rise to any limitation, impairment or discharge of Grantor’s liability hereunder, (A) renew, extend, accelerate or otherwise change the other Loan Documentstime, place, manner or terms of payment of the Obligations, (B) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Obligations or any agreement relating thereto and/or subordinate the payment of the same to the extent that payment of any other obligations, (C) request and accept guaranties of the Obligations and take and hold other security for the payment of the Obligations, (D) release, exchange, compromise, subordinate or modify, with or without consideration, any other security for payment of the Obligations, any guaranties of the Obligations, or any other obligation of any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to the Obligations, (E) enforce and apply any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary or for the benefit of Lenders in respect of the Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that Grantee may have against any such security, as Grantee in its discretion may determine consistent with this Deed to Secure Debt and any other Credit Document, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and (F) exercise any other rights available to Grantee under the other Credit Documents, at law or in equity. Grantor further agrees that this Deed to Secure Debt and the obligations of Grantor hereunder shall be valid and enforceable and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of the Obligations), including without limitation the occurrence of any of the following, whether or not Grantor shall have had notice or knowledge of any of them: (i) any failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations or any agreement relating thereto, or with respect to any guaranty of or other security for the payment of the Obligations, (ii) any waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of the Credit Agreement, any of the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any guaranty or other security for the Obligations, (iii) the Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (iv) the application of payments received from any source to the payment of indebtedness other than the Obligations, even though Lenders might have elected to apply such payment to any part or all of the Obligations, (v) any failure to perfect or continue perfection of a security interest in any other collateral which secures any of the Obligations, (vi) any defenses, set-offs or counterclaims that Grantor may allege or assert against Grantee in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury, and (vii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of Grantor as an obligor in respect of the Obligations.
7.12.2 Grantor waives, for the benefit of Grantee: (i) any right to reimbursement require Grantee, as a condition of payment or performance by Grantor, to (A) proceed against any guarantor of the Obligations or any other Person, (B) proceed against or exhaust any other security held from any other Person comprising Trustor for amounts paid Person, (C) proceed against or have resort to Beneficiary by any balance of any deposit account or credit on the books of Grantee in favor of any other Trustor Party at Person, or (D) pursue any time prior to other remedy in the Payment in Full (as hereinafter defined) power of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of TrustGrantee whatsoever; (8) ii) any defense arising out by reason of the incapacity, lack of authority or any disability or other defense of any Trustor PartyGrantor including, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or without limitation, any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Grantor from any causecause other than payment in full of the Obligations; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon Grantee’s errors or omissions in the administration of the Obligations, except behavior which amounts to bad faith; (v) (A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Deed to Secure Debt and any legal or equitable discharge of Grantor’s obligations hereunder, (B) the benefit of any statute of limitations affecting Grantor’s liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that Lender protect, secure, perfect or insure any other security interest or lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of Trustorprotest, or notices of dishonor and notices of any remedy for action or inaction, notices of default under the enforcement Credit Agreement or any agreement or instrument related thereto, notices of such liability; (9) any renewal, extension or modification of the Obligations or any agreement related thereto, and notices of any of the matters referred to in the preceding paragraph and any right to plead or assert consent to any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or of any other fact that might increase such Trustor Party’s risk under the Loan Documentsthereof; and (12vii) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used hereinthe fullest extent permitted by law, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance defenses or other avoidance actions benefits that may be applicable derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Deed to Secure Debt or the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal lawsCredit Agreement.
Appears in 1 contract
Samples: Deed to Secure Debt (Pantry Inc)
Suretyship Waivers. 6.1. In addition the event any obligation of the Lessees ------------------- under this Lease is deemed to all waivers expressed in be an agreement by any individual Lessee (i.e., Sales or Integration, as the Credit Agreement and case may be) to answer for the obligation or default of the other Loan DocumentsLessee (including each other) or as a hypothecation of property as security therefor, each Lessee represents and warrants that: (i) no representation has been made to it as to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to creditworthiness of any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowinglyobligor, and (ii) it has established adequate means of obtaining from each other obligor on a continuing basis, financial or other information pertaining to each other obligor's financial condition. Each Lessee expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentmentdiligence, demand, presentment, protest and notice of protestevery kind and nature whatsoever, notice consents to the taking by Lessor of dishonor and of non-payment, notice of acceptance of any additional security for the Loan Documents, and diligence in collection; (2) notice of the existence, creationobligations secured hereby, or incurring of any new the alteration or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security release in any particular order; (5) any right to require Beneficiary to pursue any remedy manner of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held in connection with any obligations now or hereafter secured by Beneficiary this Lease, including the Collateral, and consents that Lessor and any right obligor may deal with each other in connection with said obligations or otherwise, or alter any contracts now or hereafter existing between them, in any manner whatsoever, including without limitation the renewal, extension, acceleration, changes in time for payment, and increases or decreases in any principal, rate of interest or other amounts owing, all without in any way altering the liability of each Lessee, or affecting any security for such obligations. Should any default be made in the payment of any such obligations or in the terms or conditions of any security held, Lessor is hereby expressly given the right, at its option, to reimbursement from proceed in the enforcement of this Lease independently of any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party remedy or security it may at any time prior hold in connection with such obligations secured and it shall not be necessary for Lessor to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) proceed upon or against and/or exhaust any defense arising out of other security or remedy before proceeding to enforce its rights against any disability Lessee or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; obligor. Each Lessee further waives (9i) any right of subrogation, reimbursement, exoneration, contribution, indemnification, setoff or other recourse in respect of sums paid to plead or assert any election of remedies Lessor by Beneficiary; either Lessee and (10ii) any other defenses right or remedy, similar or dissimilar to any of the foregoing available to a surety under applicable law: (11) notice . Without limiting the foregoing, every maker, endorser, guarantor and surety hereof hereby waives presentment, notice, protest and impairment of any adverse change in the financial condition of any Trustor Party collateral, and consents to all extensions, deferrals, partial payments and refinancings hereof before or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitledafter maturity. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal laws.SUNTRUST LEASING CORPORATION --------------------------------------------------------------------------------
Appears in 1 contract
Samples: Synthetic Aircraft Lease (Pomeroy It Solutions Inc)
Suretyship Waivers. 6.1. In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Partywaivers contained herein, then Pledgor waives, agrees and acknowledges as follows and waives any defense based upon or arising from the following provisions shall applyfollowing:
(a) Each Trustor Party hereby absolutelyThe obligations of Pledgor hereunder are the immediate, unconditionallydirect, knowinglyprimary and absolute liabilities of Pledgor, and are independent of, and not co-extensive with, the Obligations or the obligations of any other Person. Pledgor expressly waives any right it may have now or in the future to direct or affect the manner or timing of Investors’ enforcement of its rights or remedies hereunder or under the other Transaction Documents. Pledgor expressly waives any right it may have now or in the future to require Investors to, and Investors shall not have any liability to, first pursue or enforce its rights and remedies against Company, any other guarantor of the Obligations, any of the properties or assets of Company or such other guarantor, or any other security, guaranty or pledge that may now or hereafter be held by Investors for the Secured Obligations, or to apply such security, guaranty, or pledge to the Secured Obligations. Pledgor shall remain liable for its obligations hereunder, notwithstanding any judgment Investors may obtain against Company, any other guarantor of the Obligations, or any other Person, or any modification, extension or renewal with respect thereto. Investors shall not be under any liability or obligation to marshal any assets in favor of Pledgor or in payment of any or all of the Secured Obligations, all of which are hereby expressly waived.
(b) Pledgor has entered into this Agreement based solely upon its independent knowledge of the financial condition of Company, and Pledgor assumes full responsibility for obtaining any further information with respect to Company or the conduct of its business. Pledgor represents that it is now, and during the term of this Agreement will be, responsible for ascertaining the financial condition of Company. Pledgor hereby waives any duty on the part of Investors to disclose to Pledgor, and agrees that it is not relying upon or expecting Investors to assert disclose to it, any fact known or take advantage hereafter known by Investors relating to the operation or condition of Company or its business or relating to the existence, liability, or financial condition of any defense based upon other guarantor of the Obligations. Pledgor knowingly accepts the full range of risk encompassed in a contract of pledge, which risk includes the possibility that Company may incur Obligations after Company’s financial condition or ability to pay debts as they mature has deteriorated.
(1c) presentmentExcept as specifically provided in this Agreement or applicable law, demandPledgor waives, protest and to the fullest extent permitted by applicable law: (i) notice of protest, notice the acceptance by Investors of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collectionthis Agreement; (2ii) notice of the existence, creation, payment, nonpayment, performance or incurring nonperformance of all or any new or additional obligations under or pursuant to any part of the Loan DocumentsSecured Obligations; (3iii) any right to require Beneficiary to proceed againstpresentment, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary protest and any right to reimbursement from any other Person comprising Trustor for amounts paid to Beneficiary by any other Trustor Party at any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance or other avoidance actions that may be applicable to the circumstances of payment renewal of any or all of such obligations the Transaction Documents, notes, commercial paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time held by Investors on which Pledgor may be liable in any way, and hereby ratifies and confirms whatever Investors may do in this regard; (iv) all rights to notice and a hearing prior to Investors’ taking possession or control of, or to Investors’ replevy, attachment or levy upon, the Pledged Collateral or any bond or security that might be required by any court prior to allowing Investors to exercise any of their remedies; (v) all rights to receive notices from Investors with respect to, or otherwise sent to, Pledgor or any guarantor; (vi) the benefit of all valuation, appraisal, stay, extension, redemption and exemption laws; (vii) the benefit of any law purporting to reduce Pledgor’s obligation in proportion to the principal obligation hereby secured; (viii) the benefit of any law purporting to exonerate Pledgor’s obligation upon performance or an offer of performance of the principal obligation; (ix) notice of any extension, modification, renewal, or amendment of any of the terms of any Transaction Documents; (x) notice of the occurrence of any Event of Default; and (xi) notice of any exercise or non-exercise by Investors of any right, power, or remedy with respect to the Secured Obligations or the Pledged Collateral.
(d) If Investors, under applicable law, may proceed to realize their benefits under any Transaction Document providing for a Lien upon any Pledged Collateral, either by judicial foreclosure or by nonjudicial sale or enforcement, then Investors, at their sole option, may determine which of their remedies or rights they may pursue without affecting any of their rights and all laws remedies under this Agreement.
(e) Pledgor represents that the Secured Obligations are and shall be incurred by Company and Pledgor for business and commercial purposes only. Any claim of Investors against Pledgor arising out of this Agreement arises out of the State conduct by Pledgor of California its trade, business, or profession. Pledgor undertakes all the risks encompassed in the Transaction Documents as they may be now or are hereafter agreed upon by Investors and federal lawsCompany. Prior to the Termination Date, Investors, in such manner and upon such terms and at such times as they deem best, and with or without notice to Pledgor, may release, add, subordinate or substitute security for the Secured Obligations.
(f) A separate action or actions may be brought and prosecuted against Pledgor whether or not an action is brought against Company, or whether Company is joined in any such action or actions.
Appears in 1 contract
Suretyship Waivers. 6.1The Borrowers shall be jointly and severally liable for all obligations hereunder. In addition to all waivers expressed in the Credit Agreement and the other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to any other Trustor Party, then the following provisions shall apply:
Each Borrower hereby expressly waives (a) Each Trustor Party hereby absolutelydiligence, unconditionallypresentment, knowinglydemand for payment, and expressly waives and agrees not to assert or take advantage protest, benefit of any defense based upon statute of limitations affecting such Borrower’s liability under the Loan Documents; (1b) presentmentdischarge due to any disability of any Borrower; (c) any defenses of any Borrower to obligations under the Loan Documents not arising under the express terms of the Loan Documents or from a material breach thereof by the L/C Guarantors which under applicable law has the effect of discharging any Borrower from the Obligations as to which this Agreement or any other Loan Document is sought to be enforced; (d) the benefit of any act or omission by the L/C Guarantors which directly or indirectly results in or aids the discharge of any Borrower from any of the Obligations by operation of law or otherwise; (e) except as expressly provided herein, demandall notices whatsoever, protest and notice of protest, notice of dishonor and of non-payment, including notice of acceptance of the Loan Documents, and diligence in collectionincurring of the Obligations; (2f) notice any right it may have to require the L/C Guarantors to disclose to it any information that the L/C Guarantors may now or hereafter acquire concerning the financial condition or any circumstances that bears on the risk of nonpayment by any other Borrower, including the existencerelease of such other Borrower from its Obligations hereunder; and (g) any requirement that the L/C Guarantors exhaust any right, creationpower or remedy or proceed against any other Borrower or any other security for, or incurring of any new guarantor of, or additional obligations under or pursuant to any other party liable for, any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice toObligations, or make demand upon any other Trustor Party; portion thereof. Each Borrower specifically agrees that it shall not be necessary or required, and Borrowers shall not be entitled to require, that the L/C Guarantors (4i) any right file suit or proceed to require Beneficiary to proceed against assert or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have obtain a claim for personal judgment against any other Trustor Party and Borrower for all or any right part of the Obligations; (ii) make any effort at collection or enforcement of all or any part of the Obligations from any Borrower; (iii) foreclose against or seek to participate in realize upon the Collateral or any other security now or hereafter held by Beneficiary and existing for all or any right part of the Obligations; (iv) file suit or proceed to reimbursement from obtain or assert a claim for personal judgment against any Borrower or any guarantor or other party liable for all or any part of the Obligations; (v) exercise or assert any other Person comprising Trustor for amounts paid right or remedy to Beneficiary by which the L/C Guarantors are or may be entitled in connection with the Obligations or any security or guaranty relating thereto to assert; or (vi) file any claim against assets of one Borrower before or as a condition of enforcing the liability of any other Trustor Party Borrower under this Agreement. WITHOUT LIMITING THE FOREGOING IN ANY WAY, EACH BORROWER HEREBY IRREVOCABLY WAIVES AND RELEASES:
(i) Any and all rights it may have at any time prior (whether arising directly or indirectly, by operation of law, contract or otherwise) to require the Payment marshaling of any assets of any Borrower, which right of marshaling might otherwise arise from any such payments made or obligations performed;
(ii) Any and all rights that would result in Full (as hereinafter defined) of all obligations of Trustor such Borrower being deemed a “creditor” under the Loan Documents and of all Obligations secured by this Deed of Trust; (8) any defense arising out of any disability or other defense of any Trustor Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the financial condition of any Trustor Party or United States Code of any other fact that might increase Borrower or any other Person, on account of payments made or obligations performed by such Trustor Party’s risk under the Loan DocumentsBorrower; and (12) all notices (except if Until such notice is specifically required to be given to such Trustor Party) and demands to time as the Obligations have been satisfied in full, any claim, right or remedy which Trustor might otherwise be entitled. As used hereinit may now have or hereafter acquire against any other Borrower that arises hereunder and/or from the performance by it hereunder including any claim, the term “Payment remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification, or participation in Full” with respect to any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preferenceclaim, fraudulent conveyance right or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws remedy of the State of California and federal lawsL/C Guarantors against any other Borrower or any collateral security which the L/C Guarantors now have or may hereafter acquire, whether or not such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise.
Appears in 1 contract
Samples: Letter of Credit Commitment and Reimbursement Agreement (MTM Technologies, Inc.)
Suretyship Waivers. 6.1. In addition to all waivers expressed in Because each Credit Party other than the Borrowers is not a direct borrower from Lender under this Agreement, although the Loan directly and indirectly benefits each Person comprising Borrowers and the Credit Agreement Parties, it is possible that Borrowers and the other Loan Documents, to the extent that any Person comprising Trustor (a “Trustor Party”) is Credit Parties could be construed as a guarantor or constitutes a surety with respect of Borrowers and of each other and thereby have certain rights and remedies accorded to them that were not intended to be available to any other Trustor Partyof them. Accordingly, then in order to induce the following provisions shall applyLender to provide the credit facilities and accommodations provided for herein, each Person which is a Borrower or a Credit Party for itself agrees as follows:
(a) Each Trustor Party hereby absolutelyThe waivers provided in this Section are intended to be irrevocable and to apply to all present and future Obligations of Borrowers to Lender, unconditionallyincluding those arising under successive transactions which shall either continue the Obligations, knowinglyincrease or decrease them, or from time to time, create new Obligations, after all or any prior Obligations have been satisfied, and expressly waives and agrees not to assert notwithstanding the dissolution, liquidation or take advantage bankruptcy of any defense based upon Borrower, any Guarantor of all or any portion of the Obligations, or other event or proceeding affecting any Borrower or any Guarantor of any portion of the Obligations.
(1b) presentmentThe Obligations of the Credit Parties hereunder are separate and independent of (i) Borrowers' obligation to pay Lender principal and interest under the Notes and the other Obligations hereunder, demandand (ii) the liabilities and obligations of any Credit Party which is a Guarantor. A separate action or actions may be brought and prosecuted against one or more Credit Parties whether or not any action is brought and prosecuted against Borrowers, protest all other Credit Parties, including any Credit Party which is a Guarantor, and whether or not a particular Borrower and/or any Credit Party is or are joined in any such action or actions. Each Borrower and each Credit Party waives the benefit of any statute of limitations affecting the Obligations hereunder or the enforcement thereof.
(c) Each Borrower and each Credit Party authorizes Lender, without notice or demand and without affecting its liability hereunder, from time to time to: (i) amend, alter, restate, replace, modify, renew, extend, accelerate or otherwise change the time for payment or the terms of protestthe Obligations with Borrowers, notice including increase or decrease the rate of dishonor interest thereon or the principal amount thereof; (ii) accept partial payments on the Obligations from any one or more Borrowers or any Guarantor; (iii) accept new or additional documents, instruments or agreements relative to the Obligations; (iv) take and hold security or additional guaranties for the payment of non-paymentthe Obligations, notice and amend, alter, exchange, substitute, transfer, enforce, waive, subordinate, terminate, modify and release in any manner any such security or guaranties; (v) apply such security and direct the order or manner of acceptance sale thereof as Lender in its sole discretion may determine; (vi) release or substitute any one or more of any Guarantors; (vii) settle, release on terms satisfactory to Lender (or by operation of law or otherwise), compound, compromise, collect or otherwise liquidate any indebtedness or security in any manner, consent to the transfer of security and bid and purchase at any sale, without affecting or impairing the Obligations of Borrowers or any Credit Party hereunder; or (viii) enforce any other right or remedy granted to Lender under this Agreement or under any of the other Loan Documents or under any Guaranty. No such action which Lender shall take or fail to take in connection with this Agreement or any of the Loan Documents, or any of them, or any security for the Obligations or other undertakings of Borrowers, nor any course of dealing with Borrowers or any Credit Party, or any course of dealing with any other person or legal entity, shall release Borrowers' Obligations or any Credit Party's responsibility hereunder, affect this Agreement or the other Loan Documents in any way, or afford Borrowers or any Credit Party any recourse against Lender. Without limiting the generality of the foregoing, Borrowers agree that this Agreement shall extend and diligence in collectionbe applicable to each new or replacement note delivered by Borrowers pursuant thereto without notice to or further consent from any Credit Party.
(d) Borrowers and Credit Parties waive any right to require Lender to: (i) proceed against any one or more Borrowers under the Note, against any Guarantor, any other Credit Party, or against anyone else; (2ii) proceed against or exhaust any security for the Obligations, or to marshal assets or to marshal assets of any Person in any particular order; (iii) except as required by applicable law, give notice of the terms, time and place of any public or private sale of any real or personalty securing the Obligations; or (iv) pursue any other remedy in Lender's power whatsoever. Each Person which is a Borrower, Guarantor or other Credit Party waives any defense arising by reason of any disability or other defense of any Borrower, any Guarantor or any other Credit Party, or by reason of the cessation from any cause whatsoever of the liability of any Borrower, any Guarantor or any other Credit Party, or by reason of any act or omission of Lender or other persons which directly or indirectly results in or aids the discharge or release of any Borrower, any Guarantor or any other Credit Party, or any of the Obligations or any security therefor by operation of law or otherwise, or by reason of the amendment, modification, renewal, extension or other change in any of the Obligations. Each Credit Party waives all setoffs and counterclaims and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Agreement and of the existence, creation, or incurring of any new or additional obligations under Obligations, and all other notices and demands of any kind and description now or pursuant to hereafter provided for by any statute or rule of the Loan Documents; (3) law, except for such notices and demands as specifically required by this Agreement. Each Borrower, each Guarantor and each other Credit Party expressly waives any right to require Beneficiary to proceed against, give notice whatsoever to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right whatsoever to participate in in, any security now or hereafter held by Beneficiary and Lender, reimbursement, indemnity, exoneration, contribution or any right to reimbursement from other claim under local, state or federal law, including, without limitation, 11 U.S.C. ?547, which it may now or hereafter have against Borrower, any Guarantor or any other Credit Party, or any other Person comprising Trustor directly or contingently liable for amounts paid the Obligations, or against or with respect to Beneficiary by each Borrowers' property (including, without limitation, any other Trustor Party at Collateral under any time prior to the Payment in Full (as hereinafter defined) of all obligations of Trustor under the Loan Documents Documents) arising from the existence or performance of this Agreement until all of the Obligations have been indefeasibly paid or satisfied in full.
(e) Each Borrower, each Guarantor and of all Obligations secured by each other Credit Party represents and warrants to Lender that: (i) this Deed of TrustAgreement is executed at each Borrower's, each Guarantor's and each other Credit Party's request; (8) any defense arising out ii) each Borrower, each Guarantor and each other Credit Party has established adequate means of any disability or obtaining from Borrowers on a continuing basis financial and other defense of any Trustor Partyinformation pertaining to Borrowers' respective businesses and Borrowers' respective financial conditions; and (iii) each Borrower, including bankruptcyeach Guarantor and each other Credit Party is now and will be completely familiar with the business, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9) any right to plead or assert any election of remedies by Beneficiary; (10) any other defenses available to a surety under applicable law: (11) notice of any adverse change in the operation and financial condition of Borrowers and its assets. Each Borrower, each Guarantor and each other Credit Party hereby waives and relinquishes any Trustor duty on the part of Lender to disclose to Borrowers any matter, fact or thing relating to the business, operation or financial condition of Borrowers and its assets now known or hereafter known by Lender during the life of this Agreement. With respect to any present or future Obligations of Borrowers to Lender, Lender need not inquire into the authority of Borrowers, and any Obligations made or created in reliance upon the professed exercise of such powers.
(f) So long as any of the Obligations under this Agreement remain unpaid or undischarged, neither a Guarantor nor any other Credit Party will, by paying any sum recoverable hereunder (whether or not demanded by Lender) or by any means or on any other ground, (i) claim any set-off or counterclaim against Borrowers, any Guarantor or any other Credit Party in respect of any Obligations or other indebtedness by virtue of the right of subrogation, by operation of law or otherwise; (ii) in any proceedings under federal bankruptcy law or insolvency proceedings of any nature, assert its rights in competition with Lender in respect of any payment hereunder because of any claims which a Borrower, any Guarantor or other Credit Party may have against Borrowers or any other Credit Party; or (iii) be entitled to have the benefit of any counterclaim or proof of claim or dividend or payment by or on behalf of Borrowers, any other Credit Party or other person, or the benefit of any of any other fact that might increase such Trustor Party’s risk under the Loan Documents; and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to security for any Obligation which, now or hereafter, Lender may hold or in which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect to it may have any obligation shall mean the payment in full in cash of all such obligations and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance share or other avoidance actions that may be applicable to the circumstances of payment of any or all of such obligations under any and all laws of the State of California and federal lawsinterest.
Appears in 1 contract
Suretyship Waivers. 6.18.14.1 Each Loan Party agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment and performance in full of the Obligations. In addition furtherance of the foregoing and without limiting the generality thereof, each Loan Party agrees as follows: (i) Agent may from time to all waivers expressed in time, without notice or demand and without affecting the Credit validity or enforceability of this Agreement and or giving rise to any limitation, impairment or discharge of such Loan Party's liability hereunder, (A) renew, extend, accelerate or otherwise change the other Loan Documentstime, place, manner or terms of payment of the Obligations, (B) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Obligations or any agreement relating thereto and/or subordinate the payment of the same to the extent that payment of any other obligations, (C) request and accept guaranties of the Obligations and take and hold other security for the payment of the Obligations, (D) release, exchange, compromise, subordinate or modify, with or without consideration, any other security for payment of the Obligations, any guaranties of the Obligations, or any other obligation of any Person comprising Trustor (a “Trustor Party”) is construed as or constitutes a surety with respect to the Obligations, (E) enforce and apply any other Trustor Party, then the following provisions shall apply:
(a) Each Trustor Party hereby absolutely, unconditionally, knowingly, and expressly waives and agrees not to assert or take advantage of any defense based upon (1) presentment, demand, protest and notice of protest, notice of dishonor and of non-payment, notice of acceptance of the Loan Documents, and diligence in collection; (2) notice of the existence, creation, or incurring of any new or additional obligations under or pursuant to any of the Loan Documents; (3) any right to require Beneficiary to proceed against, give notice to, or make demand upon any other Trustor Party; (4) any right to require Beneficiary to proceed against or exhaust any security or to proceed against or exhaust any security in any particular order; (5) any right to require Beneficiary to pursue any remedy of Beneficiary; (6) any right to direct the application of any security held by Beneficiary; (7) any right of subrogation or to enforce any remedy which Beneficiary may have against any other Trustor Party and any right to participate in any security now or hereafter held by Beneficiary or for the benefit of Lenders in respect of the Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that Agent may have against any such security, as Lenders in their discretion may determine consistent with this Agreement and any other Loan Document including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and (F) exercise any other rights available to Agent under the Loan Documents, at law or in equity; and (ii) this Agreement and the obligations of each Loan Party hereunder shall be valid and enforceable and shall not be subject to any limitation, impairment or discharge for any reason (other than payment in full of the Obligations), including without limitation the occurrence of any of the following, whether or not any Loan Party shall have had notice or knowledge of any of them: (A) any failure to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the Obligations or any agreement relating thereto, or with respect to any guaranty of or other security for the payment of the Obligations, (B) any waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of this Agreement, any of the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any guaranty or other security for the Obligations, (C) the Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (D) the application of payments received from any source to the payment of indebtedness other than the Obligations, even though Agent might have elected to apply such payment to any part or all of the Obligations, (E) any failure to perfect or continue perfection of a security interest in any other collateral which secures any of the Obligations, (F) any defenses, set-offs or counterclaims which any other Loan Party may allege or assert against any Lender in respect of the Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury, and (G) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Loan Party as an obligor in respect of the Obligations.
8.14.2 Each Loan Party waives, for the benefit of Lenders: (i) any right to reimbursement require Agent or any Lender, as a condition of payment or performance by such Loan Party, to (A) proceed against any other Loan Party, any guarantor of the Obligations or any other Person, (B) proceed against or exhaust any other security held from any other Person comprising Trustor for amounts paid to Beneficiary by Loan Party, any guarantor of the Obligations or any other Trustor Person, (C) proceed against or have resort to any balance of any deposit account or credit on the books of any Lender in favor of any Loan Party at or any time prior to other Person, or (D) pursue any other remedy in the Payment in Full (as hereinafter defined) power of all obligations of Trustor under the Loan Documents and of all Obligations secured by this Deed of Trustany Lender whatsoever; (8) ii) any defense arising out by reason of the incapacity, lack of authority or any disability or other defense of any Trustor Loan Party including, without limitation, any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any Loan Party from any cause other than payment in full of the Obligations; (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon Agent's or any Lender's errors or omissions in the administration of the Obligations, except behavior which amounts to bad faith; (v) (A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Agreement and any legal or equitable discharge of such Loan Party's obligations hereunder, (B) the benefit of any statute of limitations affecting such Loan Party's liability hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that Agent or any Lender protect, secure, perfect or insure any other security interest or lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, notices of default under this Agreement or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of any extension of credit to Loan Parties and notices of any of the matters referred to in the preceding paragraph and any right to consent to any thereof; and (vii) to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Agreement.
8.14.3 Until the Obligations shall have been paid in full, each Loan Party shall withhold exercise of (i) any claim, right or remedy, direct or indirect, that such Loan Party now has or may hereafter have against any other Loan Party or any of its assets in connection with this Agreement or the performance by any other Loan Party of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (A) any right of subrogation, reimbursement or indemnification that any Loan Party now has or may hereafter have against any other Loan Party, including bankruptcy, dissolution, liquidation, cessation, impairment, modification, or limitation, from any cause, of any liability of Trustor, or of any remedy for the enforcement of such liability; (9B) any right to plead enforce, or assert to participate in, any election of remedies by Beneficiary; claim, right or remedy that any Lender now has or may hereafter have against any Loan Party, and (10C) any benefit of, and any right to participate in, any other defenses available collateral or security now or hereafter held by Agent or any Lender, and (ii) any right of contribution any Loan Party may have against any guarantor of the Obligations. Each Loan Party further agrees that, to the extent the waiver of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a surety under applicable law: (11) notice court of competent jurisdiction to be void or voidable for any adverse change in the financial condition reason, any rights of subrogation, reimbursement or indemnification such Loan Party may have against any Trustor other Loan Party or of against any other fact that might increase collateral or security, and any rights of contribution such Trustor Party’s risk under the Loan Documents; Party may have against any such guarantor, shall be junior and (12) all notices (except if such notice is specifically required to be given to such Trustor Party) and demands to which Trustor might otherwise be entitled. As used herein, the term “Payment in Full” with respect subordinate to any obligation shall mean the payment rights Agent or any Lender may have against any Loan Party, to all right, title and interest Agent or any Lender may have in full in cash of all any such obligations other collateral or security, and the expiration of all applicable time periods regarding bankruptcy preference, fraudulent conveyance to any right Agent or other avoidance actions that any Lender may be applicable to the circumstances of payment of have against any or all of such obligations under any and all laws of the State of California and federal lawsguarantor.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Corporate Office Properties Trust)
