Letters of Credit, whereupon the
Commitment shall immediately terminate (or be reduced, as applicable) and/or the
Loans and other Obligations hereunder shall become immediately due and payable
(in whole or in part, as applicable) and/or the Loan Parties shall immediately
become obligated to Cash Collateralize the Letters of Credit (all or any, as
applicable), all without presentment, demand, protest or notice of any kind.
The Lender shall promptly advise the Company of any such declaration, but
failure to do so shall not impair the effect of such declaration.
Any cash
collateral delivered hereunder shall be held by the Lender (without liability
for interest thereon) and applied to the Obligations arising in connection with
any drawing under a Letter of Credit.
After the expiration or termination of
all Letters of Credit, such cash collateral shall be applied by the Lender to
any remaining Obligations hereunder and any excess shall be delivered to the
Company for the benefit of the Loan Parties or as a court of competent
jurisdiction may elect.
THE LOAN PARTIES.
Appointment of the Company.
Each Loan Party hereby appoints and authorizes the
Company to take such action as its agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Company by the terms
thereof, together with such power that are reasonably incidental thereto, and
the Company hereby accepts such appointment.
42
RELATIONSHIP AMONG THE LOAN PARTIES.
JOINT AND SEVERAL LIABILITY.
EACH LOAN PARTY AGREES THAT IT IS LIABLE, JOINTLY
AND SEVERALLY WITH EACH OTHER LOAN PARTY, FOR THE PAYMENT OF ALL OBLIGATIONS OF
THE LOAN PARTIES UNDER THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT, AND THAT THE
LENDER CAN ENFORCE SUCH OBLIGATIONS AGAINST ANY OR ALL LOAN PARTIES, IN THE
LENDER'S SOLE AND UNLIMITED DISCRETION.
WAIVERS OF DEFENSES.
THE OBLIGATIONS OF THE LOAN PARTIES HEREUNDER SHALL NOT BE
RELEASED, IN WHOLE OR IN PART, BY ANY ACTION OR THING WHICH MIGHT, BUT FOR THIS
PROVISION OF THIS AGREEMENT, BE DEEMED A LEGAL OR EQUITABLE DISCHARGE OF A
SURETY OR GUARANTOR, OTHER THAN IRREVOCABLE PAYMENT AND PERFORMANCE IN FULL OF
THE OBLIGATIONS (EXCEPT FOR CONTINGENT INDEMNITY AND OTHER CONTINGENT
OBLIGATIONS NOT YET DUE AND PAYABLE) AT A TIME AFTER ANY OBLIGATION OF THE
LENDER HEREUNDER TO MAKE THE LOANS AND TO ISSUE LETTERS OF CREDIT SHALL HAVE
EXPIRED OR BEEN TERMINATED AND ALL OUTSTANDING LETTERS OF CREDIT SHALL HAVE
EXPIRED OR THE LIABILITY OF THE LENDER THEREON SHALL HAVE OTHERWISE BEEN
DISCHARGED.
THE PURPOSE AND INTENT OF THIS AGREEMENT IS THAT THE OBLIGATIONS
CONSTITUTE THE DIRECT AND PRIMARY OBLIGATIONS OF EACH LOAN PARTY AND THAT THE
COVENANTS, AGREEMENTS AND ALL OBLIGATIONS OF EACH LOAN PARTY HEREUNDER BE
ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE.
EACH LOAN PARTY SHALL BE AND REMAIN
LIABLE FOR ANY DEFICIENCY REMAINING AFTER FORECLOSURE OF ANY MORTGAGE, DEED OF
TRUST OR SECURITY AGREEMENT SECURING ALL OR ANY PART OF THE OBLIGATIONS, WHETHER
OR NOT THE LIABILITY OF ANY OTHER PERSON FOR SUCH DEFICIENCY IS DISCHARGED
PURSUANT TO STATUTE, JUDICIAL