Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor and that such obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that: (a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor or the rights, remedies, powers and privileges of the Guaranteed Parties under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty Documents, the Guaranteed Parties may, at any time and from time to time and without notice or demand of any kind or nature whatsoever: (i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations); (ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Document or any such other instrument or any term or provision of the foregoing; (iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations; (iv) accept or receive (including from any other Guarantor or other Person) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise); (v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Person); (vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Person) for or relative to all or any part of the Guaranteed Obligations; (vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Person) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party may in its discretion determine, but not inconsistent with the Loan Documents; (viii) release any Person (including any other Guarantor or other Person) from any personal liability with respect to all or any part of the Guaranteed Obligations; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party may determine or as any Requirement of Law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other Person); (x) consent to any merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other Guarantor or other Person); (xi) proceed against the Borrower, such Guarantor, any other Guarantor or any other Person (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties under the Guaranty Documents or otherwise in such order and such manner as any Guaranteed Party may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor; (xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens or exercise any right of set-off; (xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party a party in possession in contemplation of law, except at its option); (xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof; (xv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other Guarantor or other Person as any Guaranteed Party may desire; and (xvi) do all or any combination of the actions set forth in this Section 3(a). (b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantor, and the rights, remedies, powers and privileges of the Guaranteed Parties, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash), by reason of: (i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations; (ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the Borrower, or any other Guarantor or other Person (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor or other Person (other than, subject to Section 4, by reason of the full payment and performance of all Guaranteed Obligations); (v) any failure of any Guaranteed Party to marshal assets in favor of the Borrower or any other Person (including any other Guarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other Guarantor or any other Person or to take any action whatsoever to mitigate or reduce such Guarantor's liability under this Guaranty Agreement, no Guaranteed Party being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its obligations under any Guaranty Document; (vi) any failure of any Guaranteed Party to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the Borrower, Guarantor or any other Person or any defect in, or any failure by Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral; (vii) any failure of any Guaranteed Party to comply with any Requirement of Law in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations; (viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency; (ix) any act or omission of any Guaranteed Party or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise; (x) any Requirement of Law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation; (xi) the possibility that the obligations of the Borrower to Guaranteed Parties may at any time and from time to time exceed the aggregate liability of such Guarantor under this Guaranty Agreement; (xii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations; (xiii) any failure of any Guaranteed Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person; (xiv) the election by any Guaranteed Party in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code"); (xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code; (xvi) any use of cash collateral under Section 363 of the Bankruptcy Code; (xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person; (xviii) the avoidance of any Lien in favor of any Guaranteed Party for any reason; (xix) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding; (xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or (xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Document or any omission to take any such action.
Appears in 1 contract
Samples: Guaranty Agreement (Cinedigm Corp.)
Acknowledgments, Waivers and Consents. Each Guarantor Obligor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor Obligor and that such obligations of such Obligor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor Obligor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor such Obligor, or the rights, remedies, powers and privileges of the Guaranteed Parties Holders under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsAgreement, the Guaranteed Parties Trustee may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
: (i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, on all or any part of the Guaranteed Obligations);
; (ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Exchange Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Exchange Document or any such other instrument or any term or provision of the foregoing;
; (iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Exchange Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
; (iv) accept or receive (including from any other Guarantor or other PersonObligor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
; (v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other PersonObligor);
; (vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other PersonObligor) for or relative to all or any part of the Guaranteed Obligations;
; (vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other PersonObligor) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party the Trustee may in its discretion determine, but not inconsistent with the Loan Documents;
; (viii) release any Person (including any other Guarantor or other PersonObligor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Trustee may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other PersonObligor);
; (x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other Guarantor or other PersonObligor);
; (xi) proceed against the BorrowerCompany, such Guarantor, any other Guarantor or any other Person (including Obligor or any issuer other guarantor of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Holders under the Guaranty Exchange Documents or otherwise in such order and such manner as any Guaranteed Party the Trustee may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
any Obligor; (xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
; (xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party the Trustee may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party the Trustee a party in possession in contemplation of law, except at its option);
; (xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with any other Obligor, the BorrowerCompany, any Subsidiary or Affiliate of the Borrower Company or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations as any Guaranteed Party the Trustee may desire; and
and (xvixv) do all or any combination of the actions set forth in this Section 3(a2.02(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantorthe Obligors, and the rights, remedies, powers and privileges of the Guaranteed PartiesHolders and the Trustee, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor each Obligor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Exchange Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the BorrowerCompany, any other Obligor or any other Guarantor guarantor of all or other Person (including any issuer part of any letters of credit)the Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
guarantor; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other Obligor or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations (other than, subject to Section 42.05, by reason of the full payment and performance of all Guaranteed Obligations);
; (v) any failure of any Guaranteed Party the Holders or the Trustee to marshal assets in favor of the Borrower Company or any other Person (including any other GuarantorObligor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Obligor, the BorrowerCompany, any other Guarantor guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such Guarantoror any other Obligor's liability under this Guaranty Agreement, no Guaranteed Party the Holders and the Trustee being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor Company may be in default of its obligations under any Guaranty Exchange Document;
; (vi) any failure of any Guaranteed Party the Holders or the Trustee to give notice of sale or other disposition of any collateral Collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the BorrowerCompany, Guarantor any Obligor or any other Person or any defect in, or any failure by Guarantor any Obligor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
Collateral; (vii) any failure of any Guaranteed Party the Holders or the Trustee to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guaranteed Obligations;
; (viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral Collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor any Obligor or may preclude such Guarantor any Obligor from obtaining reimbursement, contribution, indemnification or other recovery from any other Obligor, the BorrowerCompany, any other guarantor or any other Person and even though the Borrower Company may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
; (ix) any benefits the Company, any Obligor or any other guarantor may otherwise derive from the laws of any jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of any Guaranteed Party the Holders, the Trustee or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower Company or any other guarantor Obligor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
; (xxi) any Requirement of Law law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
; (xixii) the possibility that the obligations of the Borrower Company to Guaranteed Parties the Holders or the Trustee may at any time and from time to time exceed the aggregate liability of such Guarantor the Obligors under this Guaranty Agreement;
; (xiixiii) any counterclaim, set-off or other claim which the Borrower Company or any other guarantor Obligor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
; (xiiixiv) any failure of any Guaranteed Party the Holders or the Trustee to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xivxv) the election by any Guaranteed Party the Holders or the Trustee, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
; (xvxvi) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
; (xvixvii) any use of cash collateral under Section 363 of the Bankruptcy Code;
; (xviixviii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
; (xviiixix) the avoidance of any Lien in favor of any Guaranteed Party the Holders or the Trustee for any reason;
; (xixxx) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, Trustee that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Exchange Document or any omission to take any such action; or (xxii) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) Each Obligor expressly waives, for the benefit of the Trustee and the Holders, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Obligor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) Each Obligor represents and warrants to the Holders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Company and its properties on a continuing basis and that such Obligor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Company and its properties. Each Obligor further represents and warrants that it has reviewed and approved each of the Exchange Documents and is fully familiar with the transactions contemplated by the Exchange Documents and that it will in the future remain fully familiar with such transactions and with any new Exchange Documents and the transactions contemplated by such Exchange Documents. Each Obligor hereby expressly waives and relinquishes any duty on the part of the Holders (should any such duty exist) to disclose to such or any other Obligor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Company or its properties or to any Exchange Document or the transactions undertaken pursuant to, or contemplated by, any such Exchange Document, whether now or in the future known by the Holders.
(e) Each Obligor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Agreement.
Appears in 1 contract
Samples: Subordinated Guarantee and Security Agreement (Inamed Corp)
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor and that such obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Parties Lender under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty Loan Documents, the Guaranteed Parties Lender may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Loan Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Guarantor guarantor of the Obligations or other Person) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor guarantor of the Obligations or other Person);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor guarantor of the Obligations or other Person) for or relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor guarantor of the Obligations or other Person) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party the Lender may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor guarantor of the Obligations or other Person) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Lender may determine or as any Requirement of Law applicable laws may dictate all or any part of the Guaranteed Obligations or any collateral on for or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor guarantor of the Obligations or other Person);
(x) consent to any merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other Guarantor or other Person);
(xi) proceed against the Borrower, such Guarantor, any other Guarantor guarantor of the Obligations or any other Person (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Lender under the Guaranty Loan Documents or otherwise in such order and such manner as any Guaranteed Party the Lender may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens or exercise any right of set-off;
(xiiixi) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party the Lender may in its discretion determine (it being agreed that nothing in this clause (xiiixi) shall be deemed to make any Guaranteed Party the Lender a party in possession in contemplation of law, except at its option);
(xivxii) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xvxiii) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate affiliate of the Borrower or any other Guarantor or other Person as any Guaranteed Party the Lender may desire; and
(xvixiv) do all or any combination of the actions set forth in this Section 3(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantor, and the rights, remedies, powers and privileges of the Guaranteed PartiesLender, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law applicable laws any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the BorrowerObligations, or any other Guarantor guarantor of the Obligations or other Person (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor guarantor or other Person;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor guarantor of the Obligations or other Person (other than, subject to Section 4, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of any Guaranteed Party the Lender to marshal assets in favor of the Borrower or any other Person (including any other Guarantorguarantor of the Obligations), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other Guarantor guarantor of the Obligations or any other Person or to take any action whatsoever to mitigate or reduce such Guarantor's liability under this Guaranty Agreement, no Guaranteed Party being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its obligations under any Guaranty DocumentGuaranty;
(vi) any failure of any Guaranteed Party the Lender to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the Borrower, Guarantor or any other Person or any defect in, or any failure by Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of any Guaranteed Party the Lender to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any act or omission of any Guaranteed Party the Lender or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(x) any Requirement of Law laws which provides provide that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
(xi) the possibility that the obligations of the Borrower to Guaranteed Parties the Lender may at any time and from time to time exceed the aggregate liability of such Guarantor under this Guaranty AgreementGuaranty;
(xii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
(xiii) all rights and defenses arising out of an election of remedies by the Lender, even though that election of remedies, such as nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor's rights of subrogation and reimbursement against the Borrower
(xiv) any failure of any Guaranteed Party the Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xiv) Person or the election by any Guaranteed Party the Lender in any bankruptcy proceeding of any Person, Person of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code Code, as amended (the "Bankruptcy Code");
(xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) , any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) Code or any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviiixvi) the avoidance of any Lien in favor of any Guaranteed Party the Lender for any reason;
(xixxvii) any change in the limited liability company corporate existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxixviii) any action taken by any Guaranteed Partythe Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Loan Document or any omission to take any such action.
Appears in 1 contract
Samples: Guaranty (Envirokare Tech Inc)
Acknowledgments, Waivers and Consents. Each Guarantor The Obligor acknowledges that ------------------------------------- the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons persons other than such Guarantor the Obligor and that such obligations of the Obligor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor the Obligor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor the Obligor, or the rights, remedies, powers and privileges of the Guaranteed Parties Siena under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsAgreement, the Guaranteed Parties Siena may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
: (i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, on all or any part of the Guaranteed Pledge and Guarantee Agreement ------------------------------ - 2 - Obligations);
; (ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Basic Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Basic Document or any such other instrument or any term or provision of the foregoing;
; (iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty DocumentBasic Document with Borrower or other parties related to Borrower, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
; (iv) accept or receive (including from any other Guarantor or other Personguarantor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
; (v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Personguarantor);
; (vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Personguarantor) for or relative to all or any part of the Guaranteed Obligations;
; (vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Personguarantor) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party Siena may in its discretion determine, but not inconsistent with the Loan Documents;
; (viii) release any Person person (including any other Guarantor or other Personguarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party Siena may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other Person);
(xguarantor);(x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person person (including any other Guarantor or other Personguarantor);
; (xi) proceed against the BorrowerCompany, such Guarantor, any other Guarantor or any other Person (including guarantor or any issuer other guarantor of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Siena under the Guaranty Basic Documents or otherwise in such order and such manner as any Guaranteed Party Siena may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
any Obligor; (xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
; (xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party Siena may in its discretion determine (it being agreed that nothing in this clause (xiii) shall ------------- be deemed to make any Guaranteed Party Siena a party in possession in contemplation of law, except at its option);
; (xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with any other guarantor, the BorrowerCompany, any Subsidiary subsidiary or Affiliate affiliate of the Borrower Company or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations as any Guaranteed Party Siena may desire; and
and (xvixv) do all or any combination of the actions set forth in this Section 3(a2.02(a).. --------------- Pledge and Guarantee Agreement ------------------------------ - 3 -
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantorthe Obligor, and the rights, remedies, powers and privileges of the Guaranteed Parties, Siena under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor the Obligor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Basic Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the BorrowerCompany, any other guarantor or any other Guarantor guarantor of all or other Person (including any issuer part of any letters of credit)the Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
guarantor; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor or other Person (other than, subject to Section 4, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of any Guaranteed Party Siena to marshal assets in favor of the Borrower Company or any other Person person (including any other Guarantorguarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other guarantor, the BorrowerCompany, any other Guarantor guarantor of all or any part of the Guaranteed Obligations or any other Person person or to take any action whatsoever to mitigate or reduce such Guarantoror any other guarantor's liability under this Guaranty Agreement, no Guaranteed Party Siena not being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor Company may be in default of its obligations under any Guaranty Basic Document;
; (viv) any failure of any Guaranteed Party Siena to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the BorrowerCompany, Guarantor any Obligor or any other Person person or any defect in, or any failure by Guarantor any Obligor or any other Person person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
; (viivi) any failure of any Guaranteed Party Siena to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
; (viiivii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor any Obligor or may preclude such Guarantor any Obligor from obtaining reimbursement, contribution, indemnification or other recovery from any other guarantor, the BorrowerCompany, any other guarantor or any other Person person and even though the Borrower Company may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
; (viii) any benefits the Company, any Obligor or any other guarantor may otherwise derive from the laws of any jurisdiction of the nature of a "one-form-of- action," "anti-deficiency" or "security-first" rule; (ix) any act or omission of any Guaranteed Party Siena or any other Person person that directly or indirectly results in or aids the discharge or release of the Borrower Company or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Pledge and Guarantee Agreement ------------------------------ - 4 - Guaranteed Obligations by operation of law or otherwise;
; (x) any Requirement of Law law which provides that the obligation of a surety or guarantor Obligor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantorObligor's obligation in proportion to the principal obligation;
; (xi) the possibility that the obligations of the Borrower Company to Guaranteed Parties Siena may at any time and from time to time exceed the aggregate liability of such Guarantor the Obligor under this Guaranty Agreement;
; (xii) any counterclaim, set-off or other claim which the Borrower Company or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
; (xiii) any failure of any Guaranteed Party Siena to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
person; (xiv) the election by any Guaranteed Party Siena, in any bankruptcy proceeding of any Personperson, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
; (xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
; (xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
; (xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
person; (xviii) the avoidance of any Lien in favor of any Guaranteed Party Siena for any reason;
; (xix) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Personperson, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
; (xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, Siena that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Basic Document or any omission to take any such action; or (xxi) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Obligor.
(c) The Obligor expressly waives, for the benefit of Siena, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. The Obligor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) The Obligor represents and warrants to Siena that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Company and its properties on a continuing basis and that such Obligor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Company and its properties. The Obligor further represents and warrants that it has reviewed and approved each of the Basic Documents and is fully familiar with the transaction contemplated by the Basic Documents and that it will in the future remain fully familiar with such transaction and with any new Basic Documents and the transactions contemplated by such Basic Documents. The Obligor hereby expressly waives and relinquishes any Pledge and Guarantee Agreement ------------------------------ - 5 - duty on the part of Siena to disclose to such or any other guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Company or its properties or to any Basic Document or the transactions undertaken pursuant to, or contemplated by, any such Basic Document, whether now or in the future known by Siena.
(e) The Obligor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Agreement.
Appears in 1 contract
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor and that such obligations of such Guarantor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor such Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Parties Holders under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsAgreement, the Guaranteed Parties Trustee may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
: (i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, on all or any part of the Guaranteed Obligations);
; (ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Exchange Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Exchange Document or any such other instrument or any term or provision of the foregoing;
; (iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Exchange Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
; (iv) accept or receive (including from any other Guarantor or other PersonGuarantor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
; (v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other PersonGuarantor);
; (vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other PersonGuarantor) for or relative to all or any part of the Guaranteed Obligations;
; (vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other PersonGuarantor) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party the Trustee may in its discretion determine, but not inconsistent with the Loan Documents;
; (viii) release any Person (including any other Guarantor or other PersonGuarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Trustee may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other PersonGuarantor);
; (x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other Guarantor or other PersonGuarantor);
; (xi) proceed against the BorrowerCompany, such Guarantor, or any other Guarantor or any other Person (including any issuer guarantor of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Holders under the Guaranty Exchange Documents or otherwise in such order and such manner as any Guaranteed Party the Trustee may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such any Guarantor;
; (xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
; (xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party the Trustee may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party the Trustee a party in possession in contemplation of law, except at its option);
; (xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with any other Guarantor, the BorrowerCompany, any Subsidiary or Affiliate of the Borrower Company or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations as any Guaranteed Party the Trustee may desire; and
and (xvixv) do all or any combination of the actions set forth in this Section 3(a2.02(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantorthe Guarantors, and the rights, remedies, powers and privileges of the Guaranteed PartiesHolders and the Trustee, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such each Guarantor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Exchange Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the BorrowerCompany, or any other Guarantor or any other Person (including guarantor of all or any issuer part of any letters of credit)the Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
guarantor; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower or Company, any other Guarantor or any other Person guarantor of all or any part of the Guaranteed Obligations (other than, subject to Section 42.05, by reason of the full payment and performance of all Guaranteed Obligations);
; (v) any failure of any Guaranteed Party the Holders or the Trustee to marshal assets in favor of the Borrower Company or any other Person (including any other Guarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Guarantor, the BorrowerCompany, any other Guarantor guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Guarantor's liability under this Guaranty Agreement, no Guaranteed Party the Holders and the Trustee being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor Company may be in default of its obligations under any Guaranty Exchange Document;
; (vi) any failure of any Guaranteed Party the Holders or the Trustee to give notice of sale or other disposition of any collateral Collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the BorrowerCompany, any Guarantor or any other Person or any defect in, or any failure by any Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
Collateral; (vii) any failure of any Guaranteed Party the Holders or the Trustee to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guaranteed Obligations;
; (viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral Collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of any Guarantor or may preclude such any Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from any other Guarantor, the BorrowerCompany, any other guarantor or any other Person and even though the Borrower Company may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
; (ix) any benefits the Company, any Guarantor or any other guarantor may otherwise derive from the laws of any jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of any Guaranteed Party the Holders, the Trustee or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower Company or any other guarantor Guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
; (xxi) any Requirement of Law law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
; (xixii) the possibility that the obligations of the Borrower Company to Guaranteed Parties the Holders or the Trustee may at any time and from time to time exceed the aggregate liability of such Guarantor the Guarantors under this Guaranty Agreement;
; (xiixiii) any counterclaim, set-off or other claim which the Borrower Company or any other guarantor Guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
; (xiiixiv) any failure of any Guaranteed Party the Holders or the Trustee to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xivxv) the election by any Guaranteed Party the Holders or the Trustee, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
; (xvxvi) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
; (xvixvii) any use of cash collateral under Section 363 of the Bankruptcy Code;
; (xviixviii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
; (xviiixix) the avoidance of any Lien in favor of any Guaranteed Party the Holders or the Trustee for any reason;
; (xixxx) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, Trustee that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Exchange Document or any omission to take any such action; or (xxii) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) Each Guarantor expressly waives, for the benefit of the Trustee and the Holders, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) Each Guarantor represents and warrants to the Holders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Company and its properties on a continuing basis and that such Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Company and its properties. Each Guarantor further represents and warrants that it has reviewed and approved each of the Exchange Documents and is fully familiar with the transactions contemplated by the Exchange Documents and that it will in the future remain fully familiar with such transactions and with any new Exchange Documents and the transactions contemplated by such Exchange Documents. Each Guarantor hereby expressly waives and relinquishes any duty on the part of the Holders (should any such duty exist) to disclose to such or any other Guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Company or its properties or to any Exchange Document or the transactions undertaken pursuant to, or contemplated by, any such Exchange Document, whether now or in the future known by the Holders.
(e) Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Agreement.
Appears in 1 contract
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor and that such obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor or the rights, remedies, powers and privileges of the Guaranteed Parties under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty Documents, the Guaranteed Parties may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Guarantor or other Person) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Person);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Person) for or relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Person) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other Person) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party may determine or as any Requirement of Law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other Person);
(x) consent to any merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other Guarantor or other Person);
(xi) proceed against the Borrower, such Guarantor, any other Guarantor or any other Person (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties under the Guaranty Documents or otherwise in such order and such manner as any Guaranteed Party may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other Guarantor or other Person as any Guaranteed Party may desire; and
(xvi) do all or any combination of the actions set forth in this Section 3(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantor, and the rights, remedies, powers and privileges of the Guaranteed Parties, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the Borrower, or any other Guarantor or other Person (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor or other Person (other than, subject to Section 4, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of any Guaranteed Party to marshal assets in favor of the Borrower or any other Person (including any other Guarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other Guarantor or any other Person or to take any action whatsoever to mitigate or reduce such Guarantor's ’s liability under this Guaranty Agreement, no Guaranteed Party being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its obligations under any Guaranty Document;
(vi) any failure of any Guaranteed Party to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the Borrower, Guarantor or any other Person or any defect in, or any failure by Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of any Guaranteed Party to comply with any Requirement of Law in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any act or omission of any Guaranteed Party or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(x) any Requirement of Law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation;
(xi) the possibility that the obligations of the Borrower to Guaranteed Parties may at any time and from time to time exceed the aggregate liability of such Guarantor under this Guaranty Agreement;
(xii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
(xiii) any failure of any Guaranteed Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xiv) the election by any Guaranteed Party in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "“Bankruptcy Code"”);
(xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviii) the avoidance of any Lien in favor of any Guaranteed Party for any reason;
(xix) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Document or any omission to take any such action.
Appears in 1 contract
Samples: Guaranty Agreement (Cinedigm Corp.)
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor and that such obligations of such Guarantor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor such Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Parties Holders under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsAgreement, the Guaranteed Parties Collateral Agent may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
: (i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, on all or any part of the Guaranteed Obligations);
; (ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any such other instrument or any term or provision of the foregoing;
; (iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Loan Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
; (iv) accept or receive (including from any other Guarantor or other PersonGuarantor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
; (v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other PersonGuarantor);
; (vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other PersonGuarantor) for or relative to all or any part of the Guaranteed Obligations;
; (vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other PersonGuarantor) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party the Collateral Agent may in its discretion determine, but not inconsistent with the Loan Documents;
; (viii) release any Person (including any other Guarantor or other PersonGuarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Collateral Agent may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other PersonGuarantor);
; (x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other Guarantor or other PersonGuarantor);
; (xi) proceed against the BorrowerCompany, such Guarantor, or any other Guarantor or any other Person (including any issuer guarantor of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Holders under the Guaranty Loan Documents or otherwise in such order and such manner as any Guaranteed Party the Collateral Agent may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such any Guarantor;
; (xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
; (xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party the Collateral Agent may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party the Collateral Agent a party in possession in contemplation of law, except at its option);
; (xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with any other Guarantor, the BorrowerCompany, any Subsidiary or Affiliate of the Borrower Company or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations as any Guaranteed Party the Collateral Agent may desire; and
and (xvixv) do all or any combination of the actions set forth in this Section 3(a2.02(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantorthe Guarantors, and the rights, remedies, powers and privileges of the Guaranteed PartiesHolders and the Collateral Agent, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such each Guarantor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the BorrowerCompany, or any other Guarantor or any other Person (including guarantor of all or any issuer part of any letters of credit)the Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
guarantor; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower or Company, any other Guarantor or any other Person guarantor of all or any part of the Guaranteed Obligations (other than, subject to Section 42.05, by reason of the full payment and performance of all Guaranteed Obligations);
; (v) any failure of any Guaranteed Party the Holders or the Collateral Agent to marshal assets in favor of the Borrower Company or any other Person (including any other Guarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Guarantor, the BorrowerCompany, any other Guarantor guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such or any other Guarantor's liability under this Guaranty Agreement, no Guaranteed Party the Holders and the Collateral Agent being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor Company may be in default of its obligations under any Guaranty Loan Document;
; (vi) any failure of any Guaranteed Party the Holders or the Collateral Agent to give notice of sale or other disposition of any collateral Collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the BorrowerCompany, any Guarantor or any other Person or any defect in, or any failure by any Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
Collateral; (vii) any failure of any Guaranteed Party the Holders or the Collateral Agent to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guaranteed Obligations;
; (viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral Collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of any Guarantor or may preclude such any Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from any other Guarantor, the BorrowerCompany, any other guarantor or any other Person and even though the Borrower Company may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
; (ix) any benefits the Company, any Guarantor or any other guarantor may otherwise derive from the laws of any jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of any Guaranteed Party the Holders, the Collateral Agent or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower Company or any other guarantor Guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
; (xxi) any Requirement of Law law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
; (xixii) the possibility that the obligations of the Borrower Company to Guaranteed Parties the Holders or the Collateral Agent may at any time and from time to time exceed the aggregate liability of such Guarantor the Guarantors under this Guaranty Agreement;
; (xiixiii) any counterclaim, set-off or other claim which the Borrower Company or any other guarantor Guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
; (xiiixiv) any failure of any Guaranteed Party the Holders or the Collateral Agent to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xivxv) the election by any Guaranteed Party the Holders or the Collateral Agent, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
; (xvxvi) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
; (xvixvii) any use of cash collateral under Section 363 of the Bankruptcy Code;
; (xviixviii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
; (xviiixix) the avoidance of any Lien in favor of any Guaranteed Party the Holders or the Collateral Agent for any reason;
; (xixxx) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, Collateral Agent that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Loan Document or any omission to take any such action; or (xxii) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) Each Guarantor expressly waives, for the benefit of the Collateral Agent and the Holders, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) Each Guarantor represents and warrants to the Holders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Company and its properties on a continuing basis and that such Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Company and its properties. Each Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transactions contemplated by the Loan Documents and that it will in the future remain fully familiar with such transactions and with any new Loan Documents and the transactions contemplated by such Loan Documents. Each Guarantor hereby expressly waives and relinquishes any duty on the part of the Holders (should any such duty exist) to disclose to such or any other Guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Company or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Document, whether now or in the future known by the Holders.
(e) Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Agreement.
Appears in 1 contract
Acknowledgments, Waivers and Consents. Each Subsidiary Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor itself and that such obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Subsidiary Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor Subsidiary Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Lender Parties under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsAgreement, the Guaranteed Lender Parties may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, on all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, letter of credit, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including guarantees, letters of credit) credit or other instruments in addition to, in exchange for or relative to any Guaranty Loan Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Guarantor or other PersonSubsidiary Guarantor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other PersonSubsidiary Guarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (documents, guarantees, including letters of credit or the obligations of any other Guarantor Subsidiary Guarantor, or other Person) letters of credit for or relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (collateral, guarantee, including any letter of credit or the obligations of any other Guarantor Guarantor, or other Person) letter of credit to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Lender Party may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other PersonSubsidiary Guarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Lender Parties may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on collateral, guarantee or guarantee of (including any letter of credit issued with respect to) for or relative to all or any part of the Guaranteed Obligations (including with as to any other Guarantor or other PersonSubsidiary Guarantor);
(x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other Guarantor or other PersonSubsidiary Guarantor);
(xi) proceed against the Borrower, such GuarantorCompany, any other Subsidiary Guarantor or any other Person (including or against any issuer of collateral, any other guarantee or any letter of credit issued with respect to) provided by any Person for or relative to all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Lender Parties under the Guaranty Loan Documents or otherwise in such order and such manner as any Guaranteed Lender Party may, may in its discretion, discretion determine, without any necessity first to proceed upon against any other Person or against any collateral or exhaust to enforce any collateral, right, remedy, power or privilege as to any other Person or collateral before proceeding commencing to call upon proceed against or otherwise to enforce this Guaranty Agreement as to such any Subsidiary Guarantor;
; (xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such those Liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such that receivership as any Guaranteed Lender Party may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Lender Party a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with any other Subsidiary Guarantor, the BorrowerCompany, any Subsidiary or Affiliate of the Borrower Company or any other Guarantor or other Person as any Guaranteed Lender Party may desire; and
(xvixv) do all or any combination of the actions set forth in paragraph (a) of this Section 3(a)2.2.
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each the Subsidiary Guarantor, and the rights, remedies, powers and privileges of the Guaranteed Lender Parties, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such each Subsidiary Guarantor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any agreement, security document, guarantee guarantee, letter of credit or other instrument for or relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or of any part of the Guaranteed Obligations of the BorrowerCompany, or any other Guarantor or Subsidiary Guarantor, any other Person (including guarantor, any issuer of any letters issuer of credit)any letter of credit or any other Person, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any document, guarantee, letter of credit) credit or other instrument for or relative to all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other Subsidiary Guarantor, any other guarantor, any issuer of any letter of credit or any other Guarantor Person for all or other Person any part of the Guaranteed Obligations (other than, subject to Section 42.5, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of any Guaranteed Lender Party to marshal assets in favor of the Borrower Company or any other Person (including any other Subsidiary Guarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Subsidiary Guarantor, the BorrowerCompany, any other Guarantor guarantor, any issuer of any letter of credit or any other Person with respect to all or any part of the Guaranteed Obligations or to take any action whatsoever to mitigate or reduce such that or any other Subsidiary Guarantor's ’s liability under this Guaranty Agreement, no Guaranteed Lender Party being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor Company may be in default of its obligations under any Guaranty Loan Document;
(vi) any failure of any Guaranteed Lender Party to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligationscollateral) for all or any part of the Guaranteed Obligations to the BorrowerCompany, any Subsidiary Guarantor or any other Person or any defect in, or any failure by any Subsidiary Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of any Guaranteed Lender Party to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such that foreclosure, sale or election of remedies may or will impair the subrogation rights of any Subsidiary Guarantor or may or will preclude such any Subsidiary Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from any other Subsidiary Guarantor, the BorrowerCompany, any other guarantor guarantor, any issuer of any letter of credit or any other Person and even though the Borrower Company may or will not, as a result of such that foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any benefits the Company, any Subsidiary Guarantor, any other guarantor, any issuer of any letter of credit or any other Person may or would otherwise derive from Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure or any comparable provisions of the laws of any other jurisdiction;
(x) any act or omission of any Guaranteed Lender Party or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower Company, any other Subsidiary Guarantor, any other guarantor, any issuer of any letter of credit or any other guarantor Person of or from all or any part of the Guaranteed Obligations or of any collateral, security agreement, guarantee, letter of credit or guarantee other instrument for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(xxi) any Requirement of Law which law that provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which that reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation;
(xixii) the possibility that the obligations of the Borrower Company to Guaranteed the Lender Parties may at any time and from time to time exceed the aggregate liability of such Guarantor the Subsidiary Guarantors under this Guaranty Agreement;
(xiixiii) any counterclaim, set-off or other claim which that the Borrower Company, any other Subsidiary Guarantor, any other guarantor, any issuer of any letter of credit or any other guarantor Person has or alleges to have with respect to all or any part of the Guaranteed Obligations;
(xiiixiv) any failure of any Guaranteed Lender Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xivxv) the election by any Guaranteed Party Lender Party, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
(xvxvi) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvixvii) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xviixviii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviiixix) the avoidance of any Lien in favor of any Guaranteed Lender Party for any reason;
(xixxx) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, Lender Party that is authorized by this Section 3 2.2 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Loan Document or any omission to take any such action; or
(xxii) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, including by reason of Sections 2809, 2810, 2819, 2839, 2845, 2850, 2899, 3275 and 3433 of the California Civil Code, and any future judicial decisions or legislation or of any comparable provisions of the laws of any other jurisdiction.
(c) Each Subsidiary Guarantor expressly waives, for the benefit of the Lenders, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Subsidiary Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of Property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) Each Subsidiary Guarantor represents and warrants to the Lender Parties that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Company and its properties on a continuing basis and that it is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Company and its properties. Each Subsidiary Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transaction contemplated by the Loan Documents and that it will in the future remain fully familiar with that transaction and with any new Loan Documents and the transactions contemplated by those Loan Documents. Each Subsidiary Guarantor hereby expressly waives and relinquishes any duty on the part of any Lender Party (should any such duty exist) to disclose to any Subsidiary Guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Company or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Document, whether now or in the future known by any Lender Party.
(e) Each Subsidiary Guarantor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law that conflict with the terms of this Agreement.
Appears in 1 contract
Acknowledgments, Waivers and Consents. Each Guarantor Obligor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor Obligor and that such obligations of such Obligor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor Obligor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor such Obligor, or the rights, remedies, powers and privileges of the Guaranteed Parties Holders under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsAgreement, the Guaranteed Parties Collateral Agent may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
: (i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, on all or any part of the Guaranteed Obligations);
; (ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any such other instrument or any term or provision of the foregoing;
; (iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Loan Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
; (iv) accept or receive (including from any other Guarantor or other PersonObligor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
; (v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other PersonObligor);
; (vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other PersonObligor) for or relative to all or any part of the Guaranteed Obligations;
; (vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other PersonObligor) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party the Collateral Agent may in its discretion determine, but not inconsistent with the Loan Documents;
; (viii) release any Person (including any other Guarantor or other PersonObligor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Collateral Agent may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other PersonObligor);
; (x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other Guarantor or other PersonObligor);
; (xi) proceed against the BorrowerCompany, such Guarantor, any other Guarantor or any other Person (including Obligor or any issuer other guarantor of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Holders under the Guaranty Loan Documents or otherwise in such order and such manner as any Guaranteed Party the Collateral Agent may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
any Obligor; (xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
; (xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party the Collateral Agent may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party the Collateral Agent a party in possession in contemplation of law, except at its option);
; (xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with any other Obligor, the BorrowerCompany, any Subsidiary or Affiliate of the Borrower Company or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations as any Guaranteed Party the Collateral Agent may desire; and
and (xvixv) do all or any combination of the actions set forth in this Section 3(a2.02(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantorthe Obligors, and the rights, remedies, powers and privileges of the Guaranteed PartiesHolders and the Collateral Agent, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor each Obligor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the BorrowerCompany, any other Obligor or any other Guarantor guarantor of all or other Person (including any issuer part of any letters of credit)the Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
guarantor; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other Obligor or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations (other than, subject to Section 42.05, by reason of the full payment and performance of all Guaranteed Obligations);
; (v) any failure of any Guaranteed Party the Holders or the Collateral Agent to marshal assets in favor of the Borrower Company or any other Person (including any other GuarantorObligor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Obligor, the BorrowerCompany, any other Guarantor guarantor of all or any part of the Guaranteed Obligations or any other Person or to take any action whatsoever to mitigate or reduce such Guarantoror any other Obligor's liability under this Guaranty Agreement, no Guaranteed Party the Holders and the Collateral Agent being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor Company may be in default of its obligations under any Guaranty Loan Document;
; (vi) any failure of any Guaranteed Party the Holders or the Collateral Agent to give notice of sale or other disposition of any collateral Collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the BorrowerCompany, Guarantor any Obligor or any other Person or any defect in, or any failure by Guarantor any Obligor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
Collateral; (vii) any failure of any Guaranteed Party the Holders or the Collateral Agent to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guaranteed Obligations;
; (viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral Collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor any Obligor or may preclude such Guarantor any Obligor from obtaining reimbursement, contribution, indemnification or other recovery from any other Obligor, the BorrowerCompany, any other guarantor or any other Person and even though the Borrower Company may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
; (ix) any benefits the Company, any Obligor or any other guarantor may otherwise derive from the laws of any jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of any Guaranteed Party the Holders, the Collateral Agent or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower Company or any other guarantor Obligor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
; (xxi) any Requirement of Law law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
; (xixii) the possibility that the obligations of the Borrower Company to Guaranteed Parties the Holders or the Collateral Agent may at any time and from time to time exceed the aggregate liability of such Guarantor the Obligors under this Guaranty Agreement;
; (xiixiii) any counterclaim, set-off or other claim which the Borrower Company or any other guarantor Obligor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
; (xiiixiv) any failure of any Guaranteed Party the Holders or the Collateral Agent to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xivxv) the election by any Guaranteed Party the Holders or the Collateral Agent, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
; (xvxvi) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
; (xvixvii) any use of cash collateral under Section 363 of the Bankruptcy Code;
; (xviixviii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
; (xviiixix) the avoidance of any Lien in favor of any Guaranteed Party the Holders or the Collateral Agent for any reason;
; (xixxx) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, Collateral Agent that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Loan Document or any omission to take any such action; or (xxii) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) Each Obligor expressly waives, for the benefit of the Collateral Agent and the Holders, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Agreement or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Obligor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) Each Obligor represents and warrants to the Holders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Company and its properties on a continuing basis and that such Obligor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Company and its properties. Each Obligor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transactions contemplated by the Loan Documents and that it will in the future remain fully familiar with such transactions and with any new Loan Documents and the transactions contemplated by such Loan Documents. Each Obligor hereby expressly waives and relinquishes any duty on the part of the Holders (should any such duty exist) to disclose to such or any other Obligor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Company or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Document, whether now or in the future known by the Holders.
(e) Each Obligor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Agreement.
Appears in 1 contract
Samples: Guarantee and Security Agreement (Appaloosa Management Lp)
Acknowledgments, Waivers and Consents. Each Guarantor The Obligor ------------------------------------- acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor itself and that such obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor the Obligor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor the Obligor, or the rights, remedies, powers and privileges of the Guaranteed Parties Secured Party under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsAgreement, the Guaranteed Parties Secured Party may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Secured Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, on all or any part of the Guaranteed Secured Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Basic Document or any agreement, security document, guarantee, letter of credit, approval, consent or other instrument with respect to all or any part of the Guaranteed Secured Obligations, any Guaranty Basic Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including guarantees, letters of credit) credit or other instruments in addition to, in exchange for or relative to any Guaranty Basic Document, all or any part of the Guaranteed Secured Obligations or any collateral now or in the future serving as security for the Guaranteed Secured Obligations;
(iv) accept or receive (including from any other Guarantor or other Person) partial payments or performance on the Guaranteed Secured Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Person)Secured Obligations;
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents documents, guarantees or guarantees (including letters of credit or the obligations of any other Guarantor or other Person) for or relative to all or any part of the Guaranteed Secured Obligations;
(vii) apply any collateral or the proceeds of any collateral collateral, guarantee or guarantee (including any letter of credit or the obligations of any other Guarantor or other Person) to all or any part of the Guaranteed Secured Obligations in such manner and extent as any Guaranteed the Secured Party may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other Person) from any personal liability with respect to all or any part of the Guaranteed Secured Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed the Secured Party may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Secured Obligations or any collateral on collateral, guarantee or guarantee of (including any letter of credit issued with respect to) for or relative to all or any part of the Guaranteed Obligations (including with any other Guarantor or other Person)Secured Obligations;
(x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other Guarantor or other Person);
(xi) proceed against the BorrowerCompany, such Guarantor, any other Guarantor the Obligor or any other Person (including or against any issuer of collateral, any other guarantee or any letter of credit issued with respect to) provided by any Person for or relative to all or any part of the Guaranteed Secured Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Secured Party under the Guaranty Basic Documents or otherwise in such order and such manner as any Guaranteed the Secured Party may, may in its discretion, discretion determine, without any necessity first to proceed upon against any other Person or against any collateral or exhaust to enforce any collateral, right, remedy, power or privilege as to any other Person or collateral before proceeding commencing to call upon proceed against or otherwise to enforce this Guaranty Agreement as to such Guarantorthe Obligor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such those Liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Secured Obligations and apply the proceeds of such that receivership as any Guaranteed the Secured Party may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed the Secured Party a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the BorrowerCompany, any Subsidiary or Affiliate of the Borrower Company or any other Guarantor or other Person as any Guaranteed the Secured Party may desire; and
(xvixv) do all or any combination of the actions set forth in this Section 3(a3.02(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantorthe Obligor, and the rights, remedies, powers and privileges of the Guaranteed PartiesSecured Party, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor the Obligor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Secured Obligations, any Guaranty Basic Document or any agreement, security document, guarantee guarantee, letter of credit or other instrument for or relative to all or any part of the Guaranteed Secured Obligations;
(ii) any disability or other defense with respect to all or of any part of the Guaranteed Secured Obligations of the BorrowerCompany, or any other Guarantor or other Person (including guarantor, any issuer of any letters letter of credit)credit or any other Person, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Secured Obligations or the obligations of any such other Guarantor or other Person;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any document, guarantee, letter of credit) credit or other instrument for or relative to all or any part of the Guaranteed Secured Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Secured Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other guarantor, any issuer of any letter of credit or any other Guarantor Person for all or other Person any part of the Secured Obligations (other than, subject to Section 43.05, by reason of the full payment and performance of all Guaranteed Secured Obligations);
(v) any failure of any Guaranteed the Secured Party to marshal assets in favor of the Borrower Company or any other Person (including any other Guarantor)Person, to exhaust any collateral for all or any part of the Guaranteed Secured Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the BorrowerCompany, any other Guarantor guarantor, any issuer of any letter of credit or any other Person with respect to all or any part of the Secured Obligations or to take any action whatsoever to mitigate or reduce such Guarantorthe Obligor's liability under this Guaranty Agreement, no Guaranteed the Secured Party being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Secured Obligations may be due and payable and that the Borrower or any other Guarantor Company may be in default of its obligations under any Guaranty Basic Document;
(vi) any failure of any Guaranteed the Secured Party to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligationscollateral) for all or any part of the Guaranteed Secured Obligations to the BorrowerCompany, Guarantor the Obligor or any other Person or any defect in, or any failure by Guarantor the Obligor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of any Guaranteed the Secured Party to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Secured Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Secured Obligations, even though such that foreclosure, sale or election of remedies may or will impair the subrogation rights of Guarantor the Obligor or may or will preclude such Guarantor the Obligor from obtaining reimbursement, contribution, indemnification or other recovery from the BorrowerCompany, any other guarantor guarantor, any issuer of any letter of credit or any other Person and even though the Borrower Company may or will not, as a result of such that foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any benefits the Company, any other guarantor, any issuer of any letter of credit or any other Person may or would otherwise derive from NRS 40.430 or any other laws relating to judicial or non-judicial foreclosure with respect to real estate collateral or the election of remedies, or the availability of a deficiency, with respect to real estate collateral or any comparable provisions of the laws of any jurisdiction;
(x) any act or omission of any Guaranteed the Secured Party or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower Company, any other guarantor, any issuer of any letter of credit or any other guarantor Person of or from all or any part of the Guaranteed Secured Obligations or of any collateral, security agreement, guarantee, letter of credit or guarantee other instrument for all or any part of the Guaranteed Secured Obligations by operation of law or otherwise;
(xxi) any Requirement of Law which law that provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which that reduces a surety's or guarantor's obligation in proportion to the principal obligation;
(xixii) the possibility that the obligations of the Borrower Company to Guaranteed Parties the Secured Party may at any time and from time to time exceed the aggregate liability of such Guarantor the Obligor under this Guaranty Agreement;
(xiixiii) any counterclaim, set-off or other claim which that the Borrower Company, any other guarantor, any issuer of any letter of credit or any other guarantor Person has or alleges to have with respect to all or any part of the Guaranteed Secured Obligations;
(xiiixiv) any failure of any Guaranteed the Secured Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xivxv) the election by any Guaranteed Party the Secured Party, in any bankruptcy proceeding of any Person, of the application or nonapplication non-application of Section 1111(b)(2) of Title 11 of the United States Code (the "Federal Bankruptcy Code");
(xvxvi) any extension of credit or the grant of any Lien under Section 364 of the Federal Bankruptcy Code;
(xvixvii) any use of cash collateral under Section 363 of the Federal Bankruptcy Code;
(xviixviii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviiixix) the avoidance of any Lien in favor of any Guaranteed the Secured Party for any reason;
(xixxx) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Secured Obligations (or any interest on all or any part of the Guaranteed Secured Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, Secured Party that is authorized by this Section 3 3.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Basic Document or any omission to take any such action; or
(xxii) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) The Obligor expressly waives, for the benefit of the Secured Party, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Secured Obligations, and all notices of acceptance of this Agreement or of the existence, creation, incurring or assumption of new or additional Secured Obligations. The Obligor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of Property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) The Obligor represents and warrants to the Secured Party that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Company and its properties on a continuing basis and that it is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Company and its properties. The Obligor further represents and warrants that it has reviewed and approved each of the Basic Documents and is fully familiar with the transaction contemplated by the Basic Documents and that it will in the future remain fully familiar with that transaction and with any new Basic Documents and the transactions contemplated by those Basic Documents. The Obligor hereby expressly waives and relinquishes any duty on the part of the Secured Party (should any such duty exist) to disclose to the Obligor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Company or its properties or to any Basic Document or the transactions undertaken pursuant to, or contemplated by, any such Basic Document, whether now or in the future known by the Secured Party.
(e) The Obligor intends that its rights and obligations shall be those expressly set forth in this Agreement and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law that conflict with the terms of this Agreement.
Appears in 1 contract
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor and that such obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor or the rights, remedies, powers and privileges of the Guaranteed Parties Collateral Agent, the Administrative Agent and the Lenders under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty Credit Documents, the Guaranteed Parties Collateral Agent, the Administrative Agent and the Lenders may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Credit Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Credit Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Credit Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Guarantor or other Person) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Person);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Person) for or relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Person) to all or any part of the Guaranteed Obligations in such manner and extent as the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other Person) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Collateral Agent, the Administrative Agent or the Lenders may determine or as any Requirement of Law applicable Governmental Rules may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other Person);
(x) consent to any merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other Guarantor or other Person);
(xi) proceed against the Borrower, such Guarantor, any other Guarantor or any other Person (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Collateral Agent, the Administrative Agent and the Lenders under the Guaranty Credit Documents or otherwise in such order and such manner as the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other Guarantor or other Person as the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender may desire; and
(xvi) do all or any combination of the actions set forth in this Section 3(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantor, and the rights, remedies, powers and privileges of the Guaranteed PartiesCollateral Agent, the Administrative Agent and the Lenders, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law applicable Governmental Rules any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Credit Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the Borrower, or any other Guarantor or other Person (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor or other Person (other than, subject to Section 4, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender to marshal assets in favor of the Borrower or any other Person (including any other Guarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other Guarantor (including any issuer of any Letter of Credit) or any other Person or to take any action whatsoever to mitigate or reduce such Guarantor's ’s liability under this Guaranty Agreement, no Guaranteed Party none of the Collateral Agent, the Administrative Agent nor any Lender being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its obligations under any Guaranty Credit Document;
(vi) any failure of the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the Borrower, Guarantor or any other Person or any defect in, or any failure by Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender to comply with any Requirement of Law applicable Governmental Rules in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any act or omission of the Collateral Agent, the Administrative Agent, any Guaranteed Party Lender or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(x) any Requirement of Law Governmental Rule which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation;
(xi) the possibility that the obligations of the Borrower to Guaranteed Parties the Collateral Agent, the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of such Guarantor under this Guaranty Agreement;
(xii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
(xiii) any failure of the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xiv) the election by the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code Code, as amended (the "“Bankruptcy Code"”);
(xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xviixxxiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviiixvii) the avoidance of any Lien in favor of the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender for any reason;
(xixxviii) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xxxix) any failure by the Collateral Agent, the Administrative Agent or any Guaranteed Party Lender to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxixx) any action taken by the Collateral Agent, the Administrative Agent or any Guaranteed PartyLender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Credit Document or any omission to take any such action.
Appears in 1 contract
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such Guarantor and that such obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor or the rights, remedies, powers and privileges of the Guaranteed Parties under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty Documents, the Guaranteed Parties may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Guarantor or other Person) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Person);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Person) for or relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Person) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other Person) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party may determine or as any Requirement of Law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other Person);
(x) consent to any merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other Guarantor or other Person);
(xi) proceed against the Borrower, such Guarantor, any other Guarantor or any other Person (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties under the Guaranty Documents or otherwise in such order and such manner as any Guaranteed Party may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other Guarantor or other Person as any Guaranteed Party may desire; and
(xvi) do all or any combination of the actions set forth in this Section 3(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantor, and the rights, remedies, powers and privileges of the Guaranteed Parties, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the Borrower, or any other Guarantor or other Person (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Person;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor or other Person (other than, subject to Section 4, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of any Guaranteed Party to marshal assets in favor of the Borrower or any other Person (including any other Guarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other Guarantor or any other Person or to take any action whatsoever to mitigate or reduce such Guarantor's liability under this Guaranty Agreement, no Guaranteed Party being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its obligations under any Guaranty Document;
(vi) any failure of any Guaranteed Party to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the Borrower, Guarantor or any other Person or any defect in, or any failure by Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of any Guaranteed Party to comply with any Requirement of Law in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any act or omission of any Guaranteed Party or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(x) any Requirement of Law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
(xi) the possibility that the obligations of the Borrower to Guaranteed Parties may at any time and from time to time exceed the aggregate liability of such Guarantor under this Guaranty Agreement;
(xii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
(xiii) any failure of any Guaranteed Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xiv) the election by any Guaranteed Party in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
(xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviii) the avoidance of any Lien in favor of any Guaranteed Party for any reason;
(xix) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Party, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Document or any omission to take any such action.
Appears in 1 contract
Samples: Credit Agreement (Cinedigm Corp.)
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons persons other than such Guarantor and that such obligations of the Guarantor are absolute, irrevocable and unconditional under any and all circumstances, subject to the limitations of Section 2.09 herein. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Parties City under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsGuaranty, the Guaranteed Parties mayCity may (subject to the limitation in Section 2.1 above), at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Guarantied Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Guarantied Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Document Guarantied Obligations or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Document, all or any part of the Guaranteed Guarantied Obligations or any collateral now or in the future serving as security for the Guaranteed Guarantied Obligations;
(iv) accept or receive (including from any other Guarantor or other Personguarantor) partial payments or performance on the Guaranteed Guarantied Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Guarantied Obligations (including from any other Guarantor or other Personguarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Personguarantor) for or relative to all or any part of the Guaranteed Guarantied Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Personguarantor) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party may in its discretion determine, but not inconsistent with the Loan DocumentsGuarantied Obligations;
(viii) release any Person person (including any other Guarantor or other Personguarantor) from any personal liability with respect to all or any part of the Guaranteed Guarantied Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the City may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Guarantied Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Guarantied Obligations (including with any other Guarantor or other Personguarantor);
(x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower Tribe or any other Person person (including any other Guarantor or other Personguarantor);
(xi) proceed against the BorrowerTribe, such Guarantor, any other Guarantor or any other Person guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Guarantied Obligations or any collateral provided by any Person person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties City under the Guaranty Documents Note or otherwise in such order and such manner as any Guaranteed Party the City may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Guarantied Obligations and apply the proceeds of such receivership as any Guaranteed Party the City may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party the City a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the BorrowerTribe, any Subsidiary subsidiary or Affiliate affiliate of the Borrower Tribe or any other Guarantor guarantor of all or other Person any part of the Guarantied Obligations as any Guaranteed Party the City may desire; and
(xvixv) do all or any combination of the actions set forth in this Section 3(a).this
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each Guarantor, and the rights, remedies, powers and privileges of the Guaranteed Parties, City under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law applicable law any defense now or in the future arising (other than a defense that the Guaranteed Guarantied Obligations have been indefeasibly paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Guarantied Obligations, any Guaranty Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Guarantied Obligations of the BorrowerTribe, or any other Guarantor guarantor of all or other Person any part of the Guarantied Obligations (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Guarantied Obligations or the obligations of any such other Guarantor or other Personguarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Guarantied Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Guarantied Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower Tribe or any other Guarantor guarantor of all or other Person any part of the Guarantied Obligations (other than, subject to Section 42.05, by reason of the full payment and performance of all Guaranteed Guarantied Obligations);
(v) any failure of any Guaranteed Party the City to marshal assets in favor of the Borrower Tribe or any other Person person (including any other Guarantorguarantor), to exhaust any collateral for all or any part of the Guaranteed Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the BorrowerTribe, any other Guarantor guarantor of all or any part of the Guarantied Obligations (including any issuer of any Letter of Credit) or any other Person person or to take any action whatsoever to mitigate or reduce such Guarantor's or any other liability of such Guarantor under this Guaranty AgreementGuaranty, no Guaranteed Party the City not being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Guarantied Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its obligations under any Guaranty Documentpayable;
(vi) any failure of any Guaranteed Party the City to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Guarantied Obligations) for all or any part of the Guaranteed Guarantied Obligations to the BorrowerTribe, Guarantor or any other Person person or any defect in, or any failure by Guarantor or any other Person person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of any Guaranteed Party the City to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Guarantied Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the BorrowerTribe, any other guarantor or any other Person person and even though the Borrower Tribe may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any act or omission of any Guaranteed Party the City or any other Person person that directly or indirectly results in or aids the discharge or release of the Borrower Tribe or any other guarantor of all or any part of the Guaranteed Guarantied Obligations or any security or guarantee for all or any part of the Guaranteed Guarantied Obligations by operation of law or otherwise;
(x) any Requirement of Law law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation;
(xi) the possibility that the obligations of the Borrower Tribe to Guaranteed Parties the City independent of the Note may at any time and from time to time exceed the aggregate then outstanding liability of such Guarantor under this Guaranty AgreementGuaranty;
(xii) any counterclaim, set-off or other claim which the Borrower Tribe or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Guarantied Obligations;
(xiii) any failure of any Guaranteed Party the City to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;person.
(xiv) the election by any Guaranteed Party the City in any bankruptcy proceeding of any Personperson, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
(xv) any extension of credit or the grant of any Lien lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral provided under any other agreement between the City and the Tribe under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection with respect to cash collateral or any other purpose in any bankruptcy proceeding of any Personperson;
(xviii) the avoidance of any Lien lien in favor of any Guaranteed Party the City for any reason;
(xix) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Personperson, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Guarantied Obligations (or any interest on all or any part of the Guaranteed Guarantied Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by any Guaranteed Partythe City, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Document or any omission to take any such action; or
(xxi) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, including by reason of Sections 2787 to 2855, inclusive, 2899, 3275 and 3433 of the California Civil Code, and any future judicial decisions or legislation or of any comparable provisions of the laws of any other jurisdiction.
(c) The Note is not intended to be secured by real property, but if the Note ever becomes or is deemed to be secured by real property, this subsection (c) shall be applicable. Guarantor has been made aware of the provisions of California Civil Code Section 2856, has read and understands the provisions of that statute, has been advised by its counsel as to the scope, purpose and effect of that statute, and based thereon, and without limiting the foregoing waivers, Guarantor agrees to waive to the maximum extent not prohibited by applicable law all suretyship rights and defenses described in California Civil Code Section 2856(a). Without limiting any other waivers herein, Guarantor hereby gives the following waivers pursuant to Sections 2856(c) and 2856(d) of the California Civil Code: “The guarantor waives all rights and defenses that the guarantor may have because the debtor’s debt is secured by real property. This means, among other things:
(1) The creditor may collect from the guarantor without first foreclosing on any real or personal property collateral pledged by the debtor;
(2) If the creditor forecloses on any real property collateral pledged by the debtor:
(A) The amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.
(B) The creditor may collect from the guarantor even if the creditor, by foreclosing on the real property collateral, have destroyed any right the guarantor may have to collect from the debtor. This is an unconditional and irrevocable waiver of any rights and defenses the guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure.”
(d) The Note is not intended to be secured by real property, but if the Note ever becomes or is deemed to be secured by real property, this subsection (d) shall be applicable. Guarantor waives to the maximum extent not prohibited by applicable law all rights and defenses arising out of an election of remedies by the City, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the Code of Civil Procedure or otherwise.
(e) Guarantor expressly waives to the maximum extent not prohibited by applicable law, for the benefit of the City, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guarantied Obligations, and all notices of acceptance of this Guaranty or of the existence, creation, incurring or assumption of new or additional Guarantied Obligations.
(f) Guarantor represents and warrants to the City that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Tribe and its properties on a continuing basis and that Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Tribe and its properties. Guarantor further represents and warrants that it has reviewed and approved the Note. Guarantor hereby expressly waives and relinquishes any duty on the part of the City (should any such duty exist) to disclose to such or any other guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Tribe or its properties, whether now or in the future known by the City.
(g) Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Guaranty.
Appears in 1 contract
Samples: Land Disposition Agreement
Acknowledgments, Waivers and Consents. Each The Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such the Guarantor and that such obligations of the Guarantor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each the Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor the Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Parties Lessor under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsGuaranty, the Guaranteed Parties Lessor may, at any time and from time to time and without notice or demand of any kind or nature whatsoever, in each case to the extent and in the manner provided in the Sub-Lease Documents:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Sub-Lease Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Sub-Lease Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Sub-Lease Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Guarantor or other Personguarantor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Personguarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Personguarantor) for or relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Personguarantor) to all or any part of the Guaranteed Obligations in such manner and extent as any Guaranteed Party the Lessor may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other Personguarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Lessor may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other Personguarantor);
(x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower Lessee or any other Person (including any other Guarantor or other Personguarantor);
(xi) proceed against the BorrowerLessee, such Guarantor, any other the Guarantor or any other Person guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Lessor under the Guaranty Sub-Lease Documents or otherwise in such order and such manner as any Guaranteed Party the Lessor may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such the Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as any Guaranteed Party the Lessor may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make any Guaranteed Party the Lessor a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the BorrowerLessee, any Subsidiary or Affiliate of the Borrower Lessee or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations as any Guaranteed Party the Lessor may desire; and
(xvixv) do all or any combination of the actions set forth in this Section 3(a2.02(a).
(b) The enforceability and effectiveness of this Guaranty Agreement and the liability of each the Guarantor, and the rights, remedies, powers and privileges of the Guaranteed PartiesLessor, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such the Guarantor hereby expressly waives to the fullest extent not prohibited permitted by any Requirement of Law law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Sub-Lease Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the Borrower, Lessee or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Personguarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower Lessee or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations (other than, subject to Section 42.05, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of any Guaranteed Party the Lessor to marshal assets in favor of the Borrower Lessee or any other Person (including any other Guarantorguarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the BorrowerLessee, any other Guarantor guarantor of all or any part of the Guaranteed Obligations (including any issuer of any letter of credit) or any other Person or to take any action whatsoever to mitigate or reduce such the Guarantor's or any other guarantor's liability under this Guaranty AgreementGuaranty, no Guaranteed Party the Lessor being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor Lessee may be in default of its obligations under any Guaranty Sub-Lease Document;
(vi) any failure of any Guaranteed Party the Lessor to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to Lessee, the Borrower, Guarantor or any other Person or any defect in, or any failure by the Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of any Guaranteed Party to comply with any Requirement of Law in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude such the Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the BorrowerLessee, any other guarantor or any other Person and even though the Borrower Lessee may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ixviii) any act or omission of any Guaranteed Party or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(x) any Requirement of Law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
(xiix) the possibility that the obligations of the Borrower Lessee to Guaranteed Parties the Lessor may at any time and from time to time exceed the aggregate liability of such the Guarantor under this Guaranty AgreementGuaranty;
(xiix) any counterclaim, set-off or other claim which the Borrower Lessee or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
(xiiixi) any failure of any Guaranteed Party the Lessor to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xivxii) the election by any Guaranteed Party the Lessor in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 the Bankruptcy Code or comparable law of the United States Code (the "Bankruptcy Code")any jurisdiction;
(xvxiii) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy CodeCode or comparable law of any jurisdiction;
(xvixiv) any use of cash collateral under Section 363 of the Bankruptcy CodeCode or comparable law of any jurisdiction;
(xviixv) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviiixvi) the avoidance of any Lien in favor of any Guaranteed Party the Lessor for any reason;
(xixxvii) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxixviii) any action taken by any Guaranteed Partythe Lessor, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Sub-Lease Document or any omission to take any such action; or
(xix) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) The Guarantor expressly waives, for the benefit of the Lessor, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. The Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) The Guarantor represents and warrants to the Lessor that the Guarantor has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Lessee and its properties on a continuing basis and that the Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Lessee and its properties. The Guarantor further represents and warrants that it has reviewed and approved each of the Sub-Lease Documents and is fully familiar with the transaction contemplated by the Sub-Lease Documents and that it will in the future remain fully familiar with such transaction and with any new Sub-Lease Documents and the transactions contemplated by such Sub-Lease Documents. The Guarantor hereby expressly waives and relinquishes any duty on the part of the Lessor (should any such duty exist) to disclose to the Guarantor or any other guarantor any matter of fact or other information known to the Lessee or otherwise related to the business, operations or condition (financial or otherwise) of the Lessee or its properties or to any Sub-Lease Document or the transactions undertaken pursuant to, or contemplated by, any such Sub-Lease Document, whether now or in the future known by the Lessor.
(e) The Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Guaranty.
(f) Any provision hereof to the contrary notwithstanding, any defense available to the Lessee with respect to payment and performance of the Guaranteed Obligations shall also be available to the Guarantor with respect to the Guaranteed Obligations.
Appears in 1 contract
Acknowledgments, Waivers and Consents. Each The Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than such the Guarantor and that such obligations are of the Guarantor are, to the fullest extent permitted by law, absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each the Guarantor agrees agrees, to the fullest extent permitted by law, that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor the Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Parties Agent and the Lenders under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsGuaranty, the Guaranteed Parties Agent and the Lenders may, at any time and from time to time and without notice (except as provided in Section 2.12) or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Guarantied Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Guarantied Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Guarantied Obligations, any Guaranty Loan Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Loan Document, all or any part of the Guaranteed Guarantied Obligations or any collateral now or in the future serving as security for the Guaranteed Guarantied Obligations;
(iv) accept or receive (including from any other Guarantor or other Personguarantor) partial payments or performance on the Guaranteed Guarantied Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Guarantied Obligations (including from any other Guarantor or other Personguarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Personguarantor) for or relative to all or any part of the Guaranteed Guarantied Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Personguarantor) to all or any part of the Guaranteed Guarantied Obligations in such manner and extent as the Agent or any Guaranteed Party Lender may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other Personguarantor) from any personal liability with respect to all or any part of the Guaranteed Guarantied Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Agent or the Lenders may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Guarantied Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Guarantied Obligations (including with any other Guarantor or other Personguarantor);
(x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other Guarantor or other Personguarantor);
(xi) proceed against the Borrower, such Guarantor, any other the Guarantor or any other Person guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Guarantied Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Agent and the Lenders under the Guaranty Loan Documents or otherwise in such order and such manner as the Agent or any Guaranteed Party Lender may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement as to such Guarantorany guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Guarantied Obligations and apply the proceeds of such receivership as the Agent or any Guaranteed Party Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Agent or any Guaranteed Party Lender a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other Guarantor guarantor of all or other Person any part of the Guarantied Obligations as the Agent or any Guaranteed Party Lender may desire; and
(xvixv) do all or any combination of the actions set forth in this Section 3(aSECTION 2.02(a).
(b) The To the fullest extent permitted by law, the enforceability and effectiveness of this Guaranty Agreement and the liability of each the Guarantor, and the rights, remedies, powers and privileges of the Guaranteed PartiesAgent and the Lenders, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and such the Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law any defense now or in the future arising (other than that the Guaranteed Obligations have been paid in full in cash)arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Guarantied Obligations, any Guaranty Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Guarantied Obligations of the Borrower, or any other Guarantor guarantor of all or other Person any part of the Guarantied Obligations (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Guarantied Obligations or the obligations of any such other Guarantor or other Personguarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Guarantied Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Guarantied Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor guarantor of all or other Person any part of the Guarantied Obligations (other than, subject to Section 4SECTION 2.05, by reason of the full payment and performance of all Guaranteed Guarantied Obligations);
(v) any failure of the Agent or any Guaranteed Party Lender to marshal assets in favor of the Borrower or any other Person (including any other Guarantorguarantor), to exhaust any collateral for all or any part of the Guaranteed Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other Guarantor guarantor of all or any part of the Guarantied Obligations (including any issuer of any Letter of Credit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other the Guarantor's liability under this Guaranty AgreementGuaranty, no Guaranteed Party neither the Agent nor any Lender being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Guarantied Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its their obligations under any Guaranty Loan Document;
(vi) any failure of the Agent or any Guaranteed Party Lender to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Guarantied Obligations) for all or any part of the Guaranteed Guarantied Obligations to the Borrower, the Guarantor or any other Person or any defect in, or any failure by the Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of the Agent or any Guaranteed Party Lender to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Guarantied Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude such the Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any benefits the Borrower, the Guarantor or any other guarantor may otherwise derive from Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure or any comparable provisions of the laws of any other jurisdiction;
(x) any act or omission of the Agent, any Guaranteed Party Lender or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Guarantied Obligations or any security or guarantee (including any Letter of Credit) for all or any part of the Guaranteed Guarantied Obligations by operation of law or otherwise;
(xxi) any Requirement of Law law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation;
(xixii) the possibility that the obligations of the Borrower to Guaranteed Parties the Agent and the Lenders may at any time and from time to time exceed the aggregate liability of such the Guarantor under this Guaranty AgreementGuaranty;
(xiixiii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Guarantied Obligations;
(xiiixiv) any failure of the Agent or any Guaranteed Party Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xiv) the election by any Guaranteed Party in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
(xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviii) the avoidance of any Lien in favor of the Agent or any Guaranteed Party Lender for any reason;
(xix) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Guarantied Obligations (or any interest on all or any part of the Guaranteed Guarantied Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxi) any action taken by the Agent or any Guaranteed PartyLender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 SECTION 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Guaranty Loan Document or any omission to take any such action; or
(xxi) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, including by reason of California Civil Code Sections 2787 to 2855, inclusive, and California Code of Civil Procedure Sections 580a, 580b, 580d or 726, and all successor sections and any future judicial decisions or legislation or of any comparable provisions of the laws of any other jurisdiction.
(c) To the fullest extent permitted by law, the Guarantor expressly waives, for the benefit of the Agent and the Lenders, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guarantied Obligations, and all notices of acceptance of this Guaranty or of the existence, creation, incurring or assumption of new or additional Guarantied Obligations. To the fullest extent permitted by law, the Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure.
(d) The Guarantor represents and warrants to the Agent and the Lenders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Borrower and its properties on a continuing basis and that the Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower and its properties. The Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transactions contemplated by the Loan Documents and that it will in the future remain fully familiar with such transactions and with any new Loan Documents and the transactions contemplated by such Loan Documents. The Guarantor hereby expressly waives and relinquishes any duty on the part of the Agent or the Lenders (should any such duty exist) to disclose to the Guarantor or any other guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Document, whether now or in the future known by the Agent or any Lender.
(e) The Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty and that, to the fullest extent permitted by law, its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Guaranty.
(f) The Guarantor acknowledges that it benefits from the extensions of credit made and to be made by the Lenders to the Borrower under the Credit Agreement and the other Loan Documents.
Appears in 1 contract
Samples: Guaranty Agreement (Cornerstone Propane Partners Lp)
Acknowledgments, Waivers and Consents. Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement Guarantee involve the guarantee of obligations of Persons other than such Guarantor and that such obligations of each Guarantor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, each Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement Guarantee in accordance with its terms, terms and without affecting, limiting, reducing, discharging or terminating the liability of any Guarantor such Guarantor, or the rights, remedies, powers and privileges of the Guaranteed Parties Administrative Agent and the Lenders under this Guaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty DocumentsGuarantee, the Guaranteed Parties Administrative Agent and the Lenders may, at any time and from time to time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise change the time for payment or performance of, or the terms of, all or any part of the Guaranteed Obligations (including any increase or decrease in the principal portion of, or rate or rates of interest on, all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter into or give, any Loan Document or any agreement, security document, guarantee, approval, consent or other instrument with respect to all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any such other instrument or any term or provision of the foregoing;
(iii) accept or enter into new or additional agreements, security documents, guarantees (including letters of credit) or other instruments in addition to, in exchange for or relative to any Guaranty Loan Document, all or any part of the Guaranteed Obligations or any collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Guarantor or other Personguarantor) partial payments or performance on the Guaranteed Obligations (whether as a result of the exercise of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the Guaranteed Obligations (including from any other Guarantor or other Personguarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any collateral, security documents or guarantees (including letters of credit or the obligations of any other Guarantor or other Personguarantor) for or relative to all or any part of the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including any letter of credit or the obligations of any other Guarantor or other Personguarantor) to all or any part of the Guaranteed Obligations in such manner and extent as the Administrative Agent or any Guaranteed Party Lender may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other Guarantor or other Personguarantor) from any personal liability with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as any Guaranteed Party the Administrative Agent or the Lenders may determine or as any Requirement of Law applicable law may dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guaranteed Obligations (including with any other Guarantor or other Personguarantor);
(x) consent to any the merger or consolidation of, the sale of substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other Guarantor or other Personguarantor);
(xi) proceed against the Borrower, such Guarantor, any other Guarantor or any other Person guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Guaranteed Parties Administrative Agent and the Lenders under the Guaranty Loan Documents or otherwise in such order and such manner as the Administrative Agent or any Guaranteed Party Lender may, in its discretion, determine, without any necessity to proceed upon or against or exhaust any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty Agreement Guarantee as to such Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or granting Liens liens on any interest in real property by judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any other election of remedies with respect to such Liens liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or any part of the Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Guaranteed Party Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Guaranteed Party Lender a party in possession in contemplation of law, except at its option);
(xiv) amend, supplement, modify, alter or release the subordination of any junior or subordinated indebtedness or any security thereof;
(xv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations as the Administrative Agent or any Guaranteed Party Lender may desire; and
(xvixv) do all or any combination of the actions set forth in this Section 3(a2.02(a).
(b) The enforceability and effectiveness of this Guaranty Agreement Guarantee and the liability of each such Guarantor, and the rights, remedies, powers and privileges of the Guaranteed PartiesAdministrative Agent and the Lenders, under this Guaranty Agreement Guarantee shall not be affected, limited, reduced, discharged or terminated, and such each Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law applicable law any defense now or in the future arising (other than a defense that the Guaranteed Obligations have been paid in full in cash), by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guaranteed Obligations, any Guaranty Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guaranteed Obligations of the Borrower, or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations (including any issuer of any letters of credit), including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guaranteed Obligations or the obligations of any such other Guarantor or other Personguarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of the priority of any Lien lien on any collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other Guarantor guarantor of all or other Person any part of the Guaranteed Obligations (other than, subject to Section 42.05, by reason of the full payment and performance of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Guaranteed Party Lender to marshal assets in favor of the Borrower or any other Person (including any other Guarantorguarantor), to exhaust any collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other Guarantor guarantor of all or any part of the Guaranteed Obligations (including any issuer of any Letter of Credit) or any other Person or to take any action whatsoever to mitigate or reduce such Guarantor's or any other liability of such Guarantor under this Guaranty AgreementGuarantee, no Guaranteed Party neither the Administrative Agent nor any Lender being under any obligation to take any such action notwithstanding the fact that all or any part of the Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of its obligations under any Guaranty Loan Document;
(vi) any failure of the Administrative Agent or any Guaranteed Party Lender to give notice of sale or other disposition of any collateral (including any notice of any judicial or nonjudicial foreclosure or sale of any interest in real property serving as collateral for all or any part of the Guaranteed Obligations) for all or any part of the Guaranteed Obligations to the Borrower, such Guarantor or any other Person or any defect in, or any failure by such Guarantor or any other Person to receive, any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of the Administrative Agent or any Guaranteed Party Lender to comply with any Requirement of Law applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guaranteed Obligations;
(viii) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to, any interest in real property or other collateral serving as security for all or any part of the Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of such Guarantor or may preclude such Guarantor from obtaining reimbursement, contribution, indemnification or other recovery from the Borrower, any other guarantor or any other Person and even though the Borrower may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any act or omission of the Administrative Agent, any Guaranteed Party Lender or any other Person that directly or indirectly results in or aids the discharge or release of the Borrower or any other guarantor of all or any part of the Guaranteed Obligations or any security or guarantee for all or any part of the Guaranteed Obligations by operation of law or otherwise;
(x) any Requirement of Law law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's ’s or guarantor's ’s obligation in proportion to the principal obligation;
(xi) the possibility that the obligations of the Borrower to Guaranteed Parties the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of such Guarantor under this Guaranty AgreementGuarantee;
(xii) any counterclaim, set-off or other claim which the Borrower or any other guarantor has or alleges to have with respect to all or any part of the Guaranteed Obligations;
(xiii) any failure of the Administrative Agent or any Guaranteed Party Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;.
(xiv) the election by any Guaranteed Party in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of Title 11 of the United States Code (the "Bankruptcy Code");
(xv) any extension of credit or the grant of any Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person;
(xviiixv) the avoidance of any Lien in favor of the Administrative Agent or any Guaranteed Party Lender for any reason;
(xixxvi) any change in the limited liability company existence, structure or ownership of the Borrower or the bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guaranteed Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a result of any such proceeding;
(xx) any failure by any Guaranteed Party to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xxixvii) any action taken by the Administrative Agent or any Guaranteed PartyLender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 3 2.02 or otherwise in this Guaranty Agreement Guarantee or by any other provision of any Guaranty Loan Document or any omission to take any such action; or
(xviii) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) Each Guarantor waives all rights and defenses arising out of an election of remedies by the Administrative Agent and the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Guarantor’s rights of subrogation and reimbursement against the principal by the operation of law or otherwise.
(d) Each Guarantor expressly waives, for the benefit of the Administrative Agent and the Lenders, all set-offs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guarantee or of the existence, creation, incurring or assumption of new or additional Guaranteed Obligations. Each Guarantor further expressly waives the benefit of any and all statutes of limitation and any and all laws providing for the exemption of property from execution or for valuation and appraisal upon foreclosure, to the maximum extent not prohibited by applicable law.
(e) Each Guarantor represents and warrants to the Administrative Agent and the Lenders that it has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Borrower and its properties on a continuing basis and that such Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower and its properties. Each Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transaction contemplated by the Loan Documents and that it will in the future remain fully familiar with such transaction and with any new Loan Documents and the transactions contemplated by such Loan Documents. Each Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders (should any such duty exist) to disclose to such or any other guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Document, whether now or in the future known by the Administrative Agent or any Lender.
(f) Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Guarantee and that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which conflict with the terms of this Guarantee.
(g) Nothing in this Guarantee amends, modifies or otherwise affects any agreement between Borrower, the Administrative Agent and the Lenders regarding the amendment of, modification of or supplement to any Loan Document.
Appears in 1 contract
