Acknowledgments, Waivers and Consents. The Guarantor acknowledges that the obligations undertaken by it under this Guaranty involve the guarantee of obligations of Persons other than the Guarantor and that such obligations 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, the Guarantor agrees, to the fullest extent permitted by law, that: (a) Without affecting the enforceability or effectiveness of this Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Guaranty, 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 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 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 Guarantied Obligations, any 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 Loan Document, all or any part of the Guarantied Obligations or any collateral now or in the future serving as security for the Guarantied Obligations; (iv) accept or receive (including from any other guarantor) partial payments or performance on the 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 Guarantied Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the 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) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine; (viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Obligations; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate all or any part of the Guarantied Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Obligations (including with any other guarantor); (x) consent to the merger or consolidation of, the state of subsantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantor); (xi) proceed against the Borrower, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent or any 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 as to any 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 Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any 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 Lender a party in possession in contemplation of law, except at its option); (xiv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other guarantor of all or any part of the Guarantied Obligations as the Administrative Agent or any Lender may desire; and (xv) do all or any combination of the actions set forth in this Section 2.02(a). (b) To the fullest extent permitted by law, the enforceability and effectiveness of this Guaranty and the liability of the Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders, under this Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Guarantor hereby expressly waives any defense now or in the future arising, by reason of: (i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Obligations; (ii) any disability or other defense with respect to all or any part of the Guarantied Obligations of the Borrower, or any other guarantor of all or 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 Guarantied Obligations or the obligations of any such other guarantor; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason); (iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all or any part of the Guarantied Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Obligations); (v) any failure of the Administrative Agent or any 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 Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other 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, 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 Guarantied Obligations may be due and payable and that the Borrower may be in default of their obligations under any Loan Document; (vi) any failure of the Administrative Agent or any 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 Guarantied Obligations) for all or any part of the 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 Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the 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 Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude 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 Administrative Agent, any 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 Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise; (xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation; (xii) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty; (xiii) 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 Guarantied Obligations; (xiv) any failure of the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person; (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 Administrative Agent or any Lender for any reason; (xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Obligations (or any interest on all or any part of the Guarantied Obligations) in or as a result of any such proceeding; (xx) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty or by any other provision of any 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 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 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 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 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 Administrative 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 Administrative 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
Acknowledgments, Waivers and Consents. The Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the such Guarantor and that such obligations of the such Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the each Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the such Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under this GuarantyAgreement, the Administrative Collateral 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any 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 Loan Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
; (iv) accept or receive (including from any other guarantorGuarantor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorGuarantor);
; (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 guarantorGuarantor) for or relative to all or any part of the Guarantied 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 guarantorGuarantor) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Collateral Agent or any Lender may in its discretion determine;
; (viii) release any Person (including any other guarantorGuarantor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Collateral Agent or the Lenders may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantorGuarantor);
; (x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other guarantorGuarantor);
; (xi) proceed against the BorrowerCompany, the such or any other Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under the Loan Documents or otherwise in such order and such manner as the Administrative Collateral Agent or any 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 any guarantor;
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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Collateral Agent or any Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Collateral Agent or any Lender a party in possession in contemplation of law, except at its option);
; (xiv) 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 of all or any part of the Guarantied Guaranteed Obligations as the Administrative Collateral Agent or any Lender may desire; and
and (xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the GuarantorGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent Holders and the LendersCollateral Agent, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Guaranteed Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the BorrowerCompany, any other Guarantor or any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letters of credit)Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guarantied Guaranteed Obligations or the obligations of any such other guarantor;
; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
Guaranteed Obligations; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other Guarantor or any other guarantor of all or any part of the Guarantied Guaranteed Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
; (v) any failure of the Administrative Holders or the Collateral Agent or any Lender to marshal assets in favor of the Borrower Company or any other Person (including any other guarantorGuarantor), to exhaust any collateral for all or any part of the Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Guarantor, the BorrowerCompany, any other guarantor of all or any part of the Guarantied 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 or any other the Guarantor’s 's liability under this GuarantyAgreement, neither the Administrative Holders and the Collateral Agent nor any Lender being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower Company may be in default of their its obligations under any Loan Document;
; (vi) any failure of the Administrative Holders or the Collateral Agent or any Lender 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed Obligations to the BorrowerCompany, the any Guarantor or any other Person or any defect in, or any failure by the 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 the Administrative Holders or the Collateral Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the any Guarantor or may preclude the 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 BorrowerCompany, the any 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;
jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of the Administrative AgentHolders, any Lender 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
; (xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s 's or guarantor’s 's obligation in proportion to the principal obligation;
; (xii) the possibility that the obligations of the Borrower Company to the Administrative Holders or the Collateral Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor Guarantors under this Guaranty;
Agreement; (xiii) 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 Guarantied Guaranteed Obligations;
; (xiv) any failure of the Administrative Holders or the Collateral Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xv) the election by the Holders or the Collateral Agent, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code; (xvi) 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 the Administrative Holders or the Collateral Agent or any Lender for any reason;
; (xixxx) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
; (xxxxi) any action taken by the Administrative Collateral Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Loan Document or any omission to take any such action; or
or (xxixxii) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, whatsoever 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 Each Guarantor expressly waives, for the benefit of the Administrative Collateral Agent and the LendersHolders, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty Agreement or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the 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) The Each Guarantor represents and warrants to the Administrative Agent and the Lenders 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 Borrower Company and its properties on a continuing basis and that the such Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower Company and its properties. The 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. The Each Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders Holders (should any such duty exist) to disclose to the Guarantor such or any other guarantor Guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower 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 Administrative Agent or any LenderHolders.
(e) The Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty Agreement and that, to the fullest extent permitted by law, 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 GuarantyAgreement.
(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
Acknowledgments, Waivers and Consents. The Guarantor acknowledges that the obligations undertaken by it under this Guaranty involve the guarantee of obligations of Persons other than the Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lessor under this Guaranty, the Administrative Agent and the Lenders 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 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 Guarantied 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 Guarantied Guaranteed Obligations, any Loan 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 Loan Sub-Lease Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the Guarantied 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) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender Lessor may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders Lessor may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the existence of the Borrower Lessee or any other Person (including any other guarantor);
(xi) proceed against the BorrowerLessee, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lessor under the Loan Sub-Lease Documents or otherwise in such order and such manner as the Administrative Agent or any Lender 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 as to any guarantorthe 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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender Lessor may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender Lessor a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with the BorrowerLessee, any Subsidiary or Affiliate of the Borrower Lessee or any other guarantor of all or any part of the Guarantied Guaranteed Obligations as the Administrative Agent or any Lender Lessor may desire; and
(xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty and the liability of the Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the LendersLessor, under this Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Guaranteed Obligations, any Loan Sub-Lease Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the Borrower, Lessee or any other guarantor of all or any part of the Guarantied 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 Guarantied Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower Lessee or any other guarantor of all or any part of the Guarantied Guaranteed Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender Lessor to marshal assets in favor of the Borrower Lessee or any other Person (including any other guarantor), to exhaust any collateral for all or any part of the Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the BorrowerLessee, any other guarantor of all or any part of the Guarantied 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 the Guarantor’s guarantor's liability under this Guaranty, neither the Administrative Agent nor any Lender Lessor being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower Lessee may be in default of their its obligations under any Loan Sub-Lease Document;
(vi) any failure of the Administrative Agent or any Lender 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed Obligations to the BorrowerLessee, 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 Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude 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;
(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 Administrative Agent, any 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 Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xiviii) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s 's or guarantor’s 's obligation in proportion to the principal obligation;
(xiiix) the possibility that the obligations of the Borrower Lessee to the Administrative Agent and the Lenders Lessor may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiiix) 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 Guarantied Guaranteed Obligations;
(xivxi) any failure of the Administrative Agent or any Lender Lessor to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xvxii) the election by the Lessor in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code or comparable law of any jurisdiction;
(xiii) 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 the Administrative Agent or any Lender Lessor for any reason;
(xixxvii) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
(xxxviii) any action taken by the Administrative Agent or any LenderLessor, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty or by any other provision of any Loan Sub-Lease Document or any omission to take any such action; or
(xxixix) 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 The Guarantor expressly waives, for the benefit of the Administrative Agent and the LendersLessor, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the 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 Administrative Agent and Lessor that the Lenders that it Guarantor has established adequate means of obtaining financial and other information pertaining to the business, operations and condition (financial and otherwise) of the Borrower 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 Borrower Lessee and its properties. The Guarantor further represents and warrants that it has reviewed and approved each of the Loan Sub-Lease Documents and is fully familiar with the transactions transaction contemplated by the Loan Sub-Lease Documents and that it will in the future remain fully familiar with such transactions transaction and with any new Loan Sub-Lease Documents and the transactions contemplated by such Loan Sub-Lease Documents. The Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders 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 Borrower Lessee or its properties or to any Loan Sub-Lease Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Sub-Lease Document, whether now or in the future known by the Administrative Agent or any LenderLessor.
(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, 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) The Guarantor acknowledges that it benefits from the extensions of credit made and to be made by the Lenders Any provision hereof to the Borrower under contrary notwithstanding, any defense available to the Credit Agreement Lessee with respect to payment and performance of the other Loan DocumentsGuaranteed Obligations shall also be available to the Guarantor with respect to the Guaranteed Obligations.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The (a) Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the Guarantor itself and that such obligations of the Guarantor are, to the fullest extent permitted by law, absolute, irrevocable are absolute and unconditional under any and all circumstancesirrevocable. In full recognition and in furtherance of the foregoing, each Guarantor agrees that, subject to and except as provided otherwise in the Guarantor agreeslimitations set forth in Section 2.04 below and the procedures set forth in Section 2.05 below, to the fullest extent permitted by law, that:
(a) Without and without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the respective liability of the any Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Buyer under this GuarantyAgreement, the Administrative Agent and the Lenders Buyer 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 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 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 Guarantied Obligations, any 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 Loan Document, all or any part of the Guarantied Obligations or any collateral now or in the future serving as security for the Guarantied Obligations;
(iv) accept or receive (including from any other guarantorGuarantor) partial payments or performance on the Guarantied 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 Guarantied Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the 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) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viiiii) release any Person (including any other guarantorGuarantor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
(ixiii) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders Buyer may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations as to the Company;
(iv) proceed against the Company, any Guarantor (but only as to its Proportionate Share (as defined below) of the Guaranteed Obligations) or any collateral on other Person for or guarantee of (including any letter of credit issued with respect to) relative to all or any part of the Guarantied Guaranteed Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of, the state of subsantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantor);
(xi) proceed against the Borrower, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Buyer under the Loan Documents Purchase Agreement or otherwise in such order and such manner as the Administrative Agent or any Lender may, Buyer may in its discretion, discretion determine, without any necessity first to proceed upon against any other Person or against or exhaust to enforce any collateral, right, remedy, power or privilege before proceeding to call upon or otherwise enforce this Guaranty as to any guarantor;other Person before commencing to proceed against or otherwise to enforce this Agreement as to any Guarantor; and
(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 Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any 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 Lender a party in possession in contemplation of law, except at its option);
(xivv) 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 of all or any part of the Guarantied Obligations Person as the Administrative Agent or any Lender Buyer may desire; and
(xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the GuarantorGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent and the LendersBuyer, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arisingarising against the Buyer, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Obligations of the Borrower, or any other guarantor of all or 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 Guarantied Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all or any part of the Guarantied Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Obligations);
(v) any failure of the Administrative Agent or any 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 Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other 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, 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 Guarantied Obligations may be due and payable and that the Borrower may be in default of their obligations under any Loan Document;
(vi) any failure of the Administrative Agent or any 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 Guarantied Obligations) for all or any part of the 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 Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the 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 Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude 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 Administrative Agent, any 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 Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation;
(xii) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiii) 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 Guarantied Obligations;
(xiv) any failure of the Administrative Agent or any Lender Buyer to file or enforce a claim in any bankruptcy or other proceeding with respect to the Company or any Personother Guarantor;
(xvii) 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 Administrative Agent or any Lender for any reason;
(xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding Proceeding commenced by or against any Personthe Company or a Guarantor, including any discharge of, of or bar ban or stay against collecting, collecting all or any part of the Guarantied Obligations (or any interest on all or any part of the Guarantied Obligations) in or its Guaranteed Obligation as a result of any such proceedingBankruptcy Proceeding;
(xxiii) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, Buyer that is authorized by this Section 2.02 or otherwise in this Guaranty Agreement or by any other provision of the Purchase Agreement;
(iv) any Loan Document extension, renewal, settlement, compromise, waiver or release in respect of any Guaranteed Obligation, by operation of law or otherwise;
(v) any modification or amendment of or supplement to the Purchase Agreement or any omission related document or agreement pursuant to take the terms and conditions set forth therein;
(vi) the existence of any such actionclaim, defense, set-off or other rights which any Guarantor may have at any time against the Company, Buyer or any other Person, whether in connection herewith or any unrelated transactions, provided that nothing herein shall prevent the assertion of any claim, defense or other right, remedy, power or privilege that any Guarantor or the Company may have against Buyer by separate suit or by defense, cross-claim or counterclaim in an action brought by Buyer under this Agreement or otherwise;
(vii) any change in the partnership or other organizational existence, structure or ownership of the Company, any Guarantor or any other Person; or
(xxiviii) any other circumstance whatsoeverthe invalidity or unenforceability, whether similar in whole or dissimilar to any in part, of the foregoing, that might otherwise constitute Purchase Agreement or any related document or agreement in connection with or as 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 result of any comparable provisions efforts by any Person to challenge the validity, legality or enforceability of the laws transactions provided for in the Purchase Agreement on the basis of any other jurisdictionthe adequacy of the consideration paid to the Company.
(c) To Other than with respect to the fullest extent permitted by lawprocedures provided for in Section 2.05 of this Agreement, the each Guarantor expressly waives, for the benefit of the Administrative Agent and the LendersBuyer, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty Agreement or of the existence, creation, creation or incurring or assumption of new or additional Guarantied Guaranteed 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 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 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 Purchase Agreement and is fully familiar with the transactions transaction contemplated thereby. Except as expressly required 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 terms hereof, each Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders Buyer (should any such duty exist) to disclose to the any 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 Company or its properties or to any Loan Document the Purchase Agreement or the transactions undertaken pursuant to, thereto or contemplated by, any such Loan Document, whether now or in the future known by the Administrative Agent or any Lenderthereby.
(e) The Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty Agreement and that, to the fullest extent permitted by law, that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which that conflict with the terms of this GuarantyAgreement.
(f) The Guarantor acknowledges Company and Buyer agree and acknowledge that, in exchange for the Guarantors' entry into this Agreement, each Guarantor, for itself and on behalf of the Company, shall have and be entitled to raise and assert, against Buyer or any other Person that it benefits from the extensions may assert a claim in respect of credit made a Guaranteed Obligation, any and all rights, remedies, powers, privileges, claims or defenses (other than set-offs to be made which there has not been consent by the Lenders parties, a judgment or a final determination in an arbitration) that the Company may have under the Purchase Agreement or any related document or agreement, and the Company hereby assigns to the Borrower under the Credit Agreement Guarantors any and the other Loan Documentsall such rights, remedies, powers, privileges, claims and defenses in their entirety.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Guarantee involve the guarantee of obligations of Persons other than the such Guarantor and that such obligations of the each Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the each Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Guarantee in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the such Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this GuarantyGuarantee, 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any 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 Loan Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the Guarantied 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) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantor);
(xi) proceed against the Borrower, the such Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent or any 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 Guarantee as to any guarantorsuch 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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any 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 Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other guarantor of all or any part of the Guarantied Guaranteed Obligations as the Administrative Agent or any Lender may desire; and
(xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Guarantee and the liability of the such Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders, under this Guaranty Guarantee shall not be affected, limited, reduced, discharged or terminated, and the each Guarantor hereby expressly waives to the fullest extent not prohibited by applicable law any defense now or in the future arisingarising (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 Guarantied Guaranteed Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the Borrower, or any other guarantor of all or any part of the Guarantied 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 Guarantied Guaranteed Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all or any part of the Guarantied Guaranteed Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
(v) any failure of the Administrative Agent or any 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 Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other guarantor of all or any part of the Guarantied Guaranteed Obligations (including any issuer of any letter Letter of creditCredit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other the Guarantor’s liability of such Guarantor under this GuarantyGuarantee, 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 Guarantied Guaranteed Obligations may be due and payable and that the Borrower may be in default of their its obligations under any Loan Document;
(vi) any failure of the Administrative Agent or any 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed Obligations to the Borrower, the such Guarantor or any other Person or any defect in, or any failure by the 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 Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the such Guarantor or may preclude the 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 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 Administrative Agent, any 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
(xix) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation;
(xiixi) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the such Guarantor under this GuarantyGuarantee;
(xiiixii) 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 Guarantied Guaranteed Obligations;
(xivxiii) any failure of the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;.
(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;
(xviixiv) 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 Lender for any reason;
(xixxvi) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
(xxxvii) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty Guarantee or by any other provision of any Loan Document or any omission to take any such action; or
(xxixviii) 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 Each Guarantor waives all rights and defenses arising out of an election of remedies by the fullest extent permitted 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 law, 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 Guarantied Guaranteed Obligations, and all notices of acceptance of this Guaranty Guarantee or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the 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.
(de) The 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 the 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. The Each Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transactions transaction contemplated by the Loan Documents and that it will in the future remain fully familiar with such transactions transaction and with any new Loan Documents and the transactions contemplated by such Loan Documents. The 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 the Guarantor 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.
(ef) The Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty Guarantee and that, to the fullest extent permitted by law, 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 GuarantyGuarantee.
(fg) The Guarantor acknowledges that it benefits from Nothing in this Guarantee amends, modifies or otherwise affects any agreement between Borrower, the extensions of credit made Administrative Agent and to be made by the Lenders regarding the amendment of, modification of or supplement to the Borrower under the Credit Agreement and the other any Loan DocumentsDocument.
Appears in 1 contract
Acknowledgments, Waivers and Consents. The Guarantor acknowledges that the obligations undertaken by it under this Guaranty involve the guarantee of obligations of Persons other than the Guarantor and that such obligations 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, the Guarantor agrees, to the fullest extent permitted by law, that:
(a) Without affecting the enforceability or effectiveness of this Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Guaranty, the Administrative 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 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 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 Guarantied Obligations, any 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 Loan Document, all or any part of the Guarantied Obligations or any collateral now or in the future serving as security for the Guarantied Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the 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 Guarantied Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the 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) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate all or any part of the Guarantied Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantor);
(xi) proceed against the Borrower, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent or any 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 as to any 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 Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any 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 Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other guarantor of all or any part of the Guarantied Obligations as the Administrative Agent or any Lender may desire; and
(xv) do all or any combination of the actions set forth in this Section SECTION 2.02(a).
(b) To the fullest extent permitted by law, the enforceability and effectiveness of this Guaranty and the liability of the Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders, under this Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Guarantor hereby expressly waives any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Obligations of the Borrower, or any other guarantor of all or 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 Guarantied Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all or any part of the Guarantied Obligations (other than, subject to Section SECTION 2.05, by reason of the full payment and performance of all Guarantied Obligations);
(v) any failure of the Administrative Agent or any 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 Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letter Letter of creditCredit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other the Guarantor’s 's liability under this Guaranty, 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 Guarantied Obligations may be due and payable and that the Borrower may be in default of their obligations under any Loan Document;
(vi) any failure of the Administrative Agent or any 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 Guarantied Obligations) for all or any part of the 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 Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the 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 Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude 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 Administrative Agent, any 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 Guarantied Obligations or any security or guarantee (including any letter Letter of creditCredit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s 's or guarantor’s 's obligation in proportion to the principal obligation;
(xii) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiii) 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 Guarantied Obligations;
(xiv) any failure of the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(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 Administrative Agent or any Lender for any reason;
(xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Obligations (or any interest on all or any part of the Guarantied Obligations) in or as a result of any such proceeding;
(xx) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section SECTION 2.02 or otherwise in this Guaranty or by any other provision of any 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 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 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 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 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 Administrative 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 Administrative 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. The Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the such Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the each Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and terms, without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, any Guarantor or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Guaranteed Parties under this GuarantyGuaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty Documents, the Administrative Agent and the Lenders 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any Loan 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 Loan Guaranty Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
(iv) accept or receive (including from any other guarantorGuarantor or other Person) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorGuarantor 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 guarantorGuarantor or other Person) for or relative to all or any part of the Guarantied 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 guarantorGuarantor or other Person) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender Guaranteed Party may in its discretion determine, but not inconsistent with the Loan Documents;
(viii) release any Person (including any other guarantorGuarantor or other Person) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders any Guaranteed Party may determine or as applicable law any Requirement of Law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantorGuarantor or other Person);
(x) consent to the any merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantorGuarantor or other Person);
(xi) proceed against the Borrower, the such Guarantor, any other Guarantor or any other guarantor of Person (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Guaranteed Parties under the Loan Guaranty Documents or otherwise in such order and such manner as the Administrative Agent or any Lender 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 any guarantorsuch 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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender Guaranteed Party may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender 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 of all Guarantor or other Person as any part of the Guarantied Obligations as the Administrative Agent or any Lender Guaranteed Party may desire; and
(xvxvi) do all or any combination of the actions set forth in this Section 2.02(a3(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the each Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the LendersGuaranteed Parties, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the such Guarantor hereby expressly waives to the fullest extent not prohibited by any Requirement of Law any defense now or in the future arisingarising (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 Guarantied Guaranteed Obligations, any Loan Guaranty Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the Borrower, or any other guarantor of all Guarantor or any part of the Guarantied Obligations 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 Guarantied Guaranteed Obligations or the obligations of any such other guarantorGuarantor 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 Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all Guarantor or any part of the Guarantied Obligations other Person (other than, subject to Section 2.054, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender Guaranteed Party 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 Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letter of credit) Guarantor or any other Person or to take any action whatsoever to mitigate or reduce such or any other the Guarantor’s 's liability under this GuarantyGuaranty Agreement, neither the Administrative Agent nor any Lender no Guaranteed Party being under any obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of their its obligations under any Loan Guaranty Document;
(vi) any failure of the Administrative Agent or any Lender 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed 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 Administrative Agent or any Lender Guaranteed Party to comply with applicable laws any Requirement of Law in connection with the sale or other disposition of any collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude the 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 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 Administrative Agent, any Lender 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
(xix) any law 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;
(xiixi) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders Guaranteed Parties may at any time and from time to time exceed the aggregate liability of the such Guarantor under this GuarantyGuaranty Agreement;
(xiiixii) 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 Guarantied Guaranteed Obligations;
(xivxiii) any failure of the Administrative Agent or any Lender 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 the Administrative Agent or any Lender 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 Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied 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 the Administrative Agent or any LenderGuaranteed Party, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 3 or otherwise in this Guaranty Agreement or by any other provision of any Loan 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 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 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 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 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 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 Administrative 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 Administrative 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 (Cinedigm Corp.)
Acknowledgments, Waivers and Consents. The Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the such Guarantor and that such obligations of the such Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the each Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the such Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under this GuarantyAgreement, the Administrative Agent and the Lenders 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any Loan 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 Loan Exchange Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
; (iv) accept or receive (including from any other guarantorGuarantor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorGuarantor);
; (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 guarantorGuarantor) for or relative to all or any part of the Guarantied 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 guarantorGuarantor) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender Trustee may in its discretion determine;
; (viii) release any Person (including any other guarantorGuarantor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders Trustee may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantorGuarantor);
; (x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other guarantorGuarantor);
; (xi) proceed against the BorrowerCompany, the such or any other Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under the Loan Exchange Documents or otherwise in such order and such manner as the Administrative Agent or any Lender 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 any guarantor;
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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender Trustee may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender Trustee a party in possession in contemplation of law, except at its option);
; (xiv) 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 of all or any part of the Guarantied Guaranteed Obligations as the Administrative Agent or any Lender Trustee may desire; and
and (xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the GuarantorGuarantors, and the rights, remedies, powers and privileges of the Administrative Agent Holders and the LendersTrustee, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the each Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Guaranteed Obligations, any Loan Exchange Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the BorrowerCompany, any other Guarantor or any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letters of credit)Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guarantied Guaranteed Obligations or the obligations of any such other guarantor;
; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
Guaranteed Obligations; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other Guarantor or any other guarantor of all or any part of the Guarantied Guaranteed Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
; (v) any failure of the Administrative Agent Holders or any Lender the Trustee to marshal assets in favor of the Borrower Company or any other Person (including any other guarantorGuarantor), to exhaust any collateral for all or any part of the Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Guarantor, the BorrowerCompany, any other guarantor of all or any part of the Guarantied 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 or any other the Guarantor’s 's liability under this GuarantyAgreement, neither the Administrative Agent nor any Lender Holders and the Trustee being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower Company may be in default of their its obligations under any Loan Exchange Document;
; (vi) any failure of the Administrative Agent Holders or any Lender 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed Obligations to the BorrowerCompany, the any Guarantor or any other Person or any defect in, or any failure by the 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 the Administrative Agent Holders or any Lender the Trustee to comply with applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the any Guarantor or may preclude the 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 BorrowerCompany, the any 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;
jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of the Administrative AgentHolders, any Lender 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
; (xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s 's or guarantor’s 's obligation in proportion to the principal obligation;
; (xii) the possibility that the obligations of the Borrower Company to the Administrative Agent and Holders or the Lenders Trustee may at any time and from time to time exceed the aggregate liability of the Guarantor Guarantors under this Guaranty;
Agreement; (xiii) 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 Guarantied Guaranteed Obligations;
; (xiv) any failure of the Administrative Agent Holders or any Lender the Trustee to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xv) the election by the Holders or the Trustee, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code; (xvi) 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 the Administrative Agent Holders or any Lender the Trustee for any reason;
; (xixxx) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
; (xxxxi) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, Trustee that is authorized by this Section 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Loan Exchange Document or any omission to take any such action; or
or (xxixxii) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, whatsoever 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 Each Guarantor expressly waives, for the benefit of the Administrative Agent Trustee and the LendersHolders, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty Agreement or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the 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) The Each Guarantor represents and warrants to the Administrative Agent and the Lenders 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 Borrower Company and its properties on a continuing basis and that the such Guarantor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower Company and its properties. The Each Guarantor further represents and warrants that it has reviewed and approved each of the Loan Exchange Documents and is fully familiar with the transactions contemplated by the Loan Exchange Documents and that it will in the future remain fully familiar with such transactions and with any new Loan Exchange Documents and the transactions contemplated by such Loan Exchange Documents. The Each Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders Holders (should any such duty exist) to disclose to the Guarantor such or any other guarantor Guarantor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower Company or its properties or to any Loan Exchange Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Exchange Document, whether now or in the future known by the Administrative Agent or any LenderHolders.
(e) The Each Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty Agreement and that, to the fullest extent permitted by law, 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 GuarantyAgreement.
(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
Acknowledgments, Waivers and Consents. The Each Subsidiary Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the Guarantor itself and that such obligations of the Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the each Subsidiary Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the any Subsidiary Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lender Parties under this GuarantyAgreement, the Administrative Agent and the Lenders 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any 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 Loan Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
(iv) accept or receive (including from any other guarantorSubsidiary Guarantor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorSubsidiary 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 letters of credit for or relative to all or any part of the Guarantied 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 letter of credit to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender Party may in its discretion determine;
(viii) release any Person (including any other guarantorSubsidiary Guarantor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders Lender Parties may determine or as applicable law may dictate all or any part of the Guarantied 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 Guarantied Guaranteed Obligations (including with as to any other guarantorSubsidiary Guarantor);
(x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other guarantorSubsidiary Guarantor);
(xi) proceed against the BorrowerCompany, the any Subsidiary Guarantor or any other guarantor of (including Person 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 Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lender Parties under the Loan Documents or otherwise in such order and such manner as the Administrative Agent or any Lender may, Party 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 before proceeding to call upon or otherwise enforce this Guaranty as to any guarantor;
other Person or collateral before commencing to proceed against or otherwise to enforce this Agreement as to any Subsidiary 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 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 Guarantied Guaranteed Obligations and apply the proceeds of such that receivership as the Administrative Agent or any Lender Party may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender Party a party in possession in contemplation of law, except at its option);
(xiv) 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 of all or any part of the Guarantied Obligations Person as the Administrative Agent or any Lender Party may desire; and
(xv) do all or any combination of the actions set forth in paragraph (a) of this Section 2.02(a)2.2.
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the Subsidiary Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the LendersLender Parties, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the each Subsidiary Guarantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Guaranteed Obligations, any 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 Guarantied Guaranteed Obligations;
(ii) any disability or other defense with respect to all or of any part of the Guarantied Guaranteed Obligations of the BorrowerCompany, or any other guarantor of all or Subsidiary Guarantor, any part of the Guarantied Obligations (including other 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 Guarantied Guaranteed Obligations or the obligations of any such other guarantorPerson;
(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 Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)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 of Person for all or any part of the Guarantied Guaranteed Obligations (other than, subject to Section 2.052.5, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender Party to marshal assets in favor of the Borrower Company or any other Person (including any other guarantorSubsidiary Guarantor), to exhaust any collateral for all or any part of the Guarantied 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 Guarantied 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 that or any other the Subsidiary Guarantor’s liability under this GuarantyAgreement, neither the Administrative Agent nor any no Lender Party being under any obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower Company may be in default of their its obligations under any Loan Document;
(vi) any failure of the Administrative Agent or any 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 Guarantied Obligationscollateral) for all or any part of the Guarantied Guaranteed Obligations to the BorrowerCompany, the any Subsidiary Guarantor or any other Person or any defect in, or any failure by the 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 the Administrative Agent or any Lender Party to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such that foreclosure, sale or election of remedies may or will impair the subrogation rights of the any Subsidiary Guarantor or may or will preclude the 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 BorrowerCompany, the Guarantor any Subsidiary Guarantor, any other guarantor, any issuer of any letter of credit or any other guarantor 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 the Administrative Agent, any 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 Guarantied Guaranteed Obligations or of any collateral, security or guarantee (including any agreement, guarantee, letter of credit) credit or other instrument for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
(xi) any law which 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;
(xii) the possibility that the obligations of the Borrower Company to the Administrative Agent and the Lenders Lender Parties may at any time and from time to time exceed the aggregate liability of the Guarantor Subsidiary Guarantors under this GuarantyAgreement;
(xiii) 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 Guarantied Guaranteed Obligations;
(xiv) any failure of the Administrative Agent or any Lender Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(xv) the election by any Lender Party, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code;
(xvi) 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 the Administrative Agent or any Lender Party for any reason;
(xixxx) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
(xxxxi) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, Lender Party that is authorized by this Section 2.02 2.2 or otherwise in this Guaranty Agreement or by any other provision of any Loan Document or any omission to take any such action; or
(xxixxii) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, 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 Sections 2787 to 2855Code, 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 Each Subsidiary 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 Guarantied Guaranteed Obligations, and all notices of acceptance of this Guaranty Agreement or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the 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 Property from execution or for valuation and appraisal upon foreclosure, to the maximum extent permitted by applicable law.
(d) The Each Subsidiary Guarantor represents and warrants to the Administrative Agent and the Lenders 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 Borrower Company and its properties on a continuing basis and that the Guarantor it is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower Company and its properties. The Each Subsidiary Guarantor further represents and warrants that it has reviewed and approved each of the Loan Documents and is fully familiar with the transactions transaction contemplated by the Loan Documents and that it will in the future remain fully familiar with such transactions that transaction and with any new Loan Documents and the transactions contemplated by such those Loan Documents. The Each Subsidiary Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders any Lender Party (should any such duty exist) to disclose to the any Subsidiary 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 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 Administrative Agent or any LenderLender Party.
(e) The Each Subsidiary Guarantor intends that its rights and obligations shall be those expressly set forth in this Guaranty Agreement and that, to the fullest extent permitted by law, that its obligations shall not be affected, limited, reduced, discharged or terminated by reason of any principles or provisions of law which that conflict with the terms of this GuarantyAgreement.
(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
Acknowledgments, Waivers and Consents. The Guarantor acknowledges that the obligations undertaken by it under this Guaranty involve the guarantee of obligations of Persons persons other than the such Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by law, 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, the Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders City under this Guaranty, the Administrative Agent and City may (subject to the Lenders maylimitation 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 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 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 Guarantied Obligations, any Loan Document 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 Loan Document, all or any part of the Guarantied Obligations or any collateral now or in the future serving as security for the Guarantied Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the 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 Guarantied Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the 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) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determineObligations;
(viii) release any Person person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders City may determine or as applicable law may dictate all or any part of the Guarantied Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the existence of the Borrower Tribe or any other Person person (including any other guarantor);
(xi) proceed against the BorrowerTribe, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Obligations or any collateral provided by any Person person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders City under the Loan Documents Note or otherwise in such order and such manner as the Administrative Agent or any Lender 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 as to any guarantorGuarantor;
(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 Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender City may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender City a party in possession in contemplation of law, except at its option);
(xiv) 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 of all or any part of the Guarantied Obligations as the Administrative Agent or any Lender City may desire; and
(xv) do all or any combination of the actions set forth in this Section 2.02(a).this
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty and the liability of the Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders, City under this Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Guarantor hereby expressly waives to the fullest extent not prohibited by applicable law any defense now or in the future arisingarising (other than a defense that the 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 Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Obligations of the BorrowerTribe, or any other guarantor of all or 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 Guarantied Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower Tribe or any other guarantor of all or any part of the Guarantied Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Obligations);
(v) any failure of the Administrative Agent or any Lender City to marshal assets in favor of the Borrower Tribe or any other Person person (including any other guarantor), to exhaust any collateral for all or any part of the Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the BorrowerTribe, any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letter Letter of creditCredit) or any other Person person or to take any action whatsoever to mitigate or reduce such or any other the Guarantor’s liability of such Guarantor under this Guaranty, neither the Administrative Agent nor any Lender City not being under any obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Obligations may be due and payable and that the Borrower may be in default of their obligations under any Loan Documentpayable;
(vi) any failure of the Administrative Agent or any Lender 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 Guarantied Obligations) for all or any part of the Guarantied Obligations to the BorrowerTribe, the Guarantor or any other Person person or any defect in, or any failure by the 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 the Administrative Agent or any Lender City to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the 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 Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude the 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 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 Administrative Agent, any Lender 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 Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xix) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation;
(xiixi) the possibility that the obligations of the Borrower Tribe to the Administrative Agent and City independent of the Lenders Note may at any time and from time to time exceed the aggregate then outstanding liability of the Guarantor under this Guaranty;
(xiiixii) 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 Guarantied Obligations;
(xivxiii) any failure of the Administrative Agent or any Lender City to file or enforce a claim in any bankruptcy or other proceeding with respect to any Personperson.
(xiv) the election by the City in any bankruptcy proceeding of any person, of the application or nonapplication of Section 1111(b)(2) of 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 the Administrative Agent or any Lender City for any reason;
(xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Personperson, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Obligations (or any interest on all or any part of the Guarantied Obligations) in or as a result of any such proceeding;
(xx) any action taken by the Administrative Agent or any LenderCity, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty or by any other provision of any 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, 2899, 3275 and 3433 of the California Code of Civil Procedure Sections 580aCode, 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 Note is not intended to be secured by real property, but if the fullest 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 permitted not prohibited by lawapplicable 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 waiveswaives to the maximum extent not prohibited by applicable law, for the benefit of the Administrative Agent and the LendersCity, 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.
(df) The Guarantor represents and warrants to the Administrative Agent and the Lenders 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 Borrower Tribe 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 Tribe 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 DocumentsNote. The Guarantor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders City (should any such duty exist) to disclose to the Guarantor 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 Tribe or its properties or to any Loan Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Documentproperties, whether now or in the future known by the Administrative Agent or any LenderCity.
(eg) 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, 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) 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: Land Disposition Agreement
Acknowledgments, Waivers and Consents. The Guarantor acknowledges that the obligations undertaken by it under this Guaranty involve the guarantee of obligations of Persons other than the Guarantor and that such obligations 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, the Guarantor agrees, to the fullest extent permitted by law, that:
(a) Without affecting the enforceability or effectiveness of this Guaranty in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under this Guaranty, 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 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 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 Guarantied Obligations, any 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 Loan Document, all or any part of the Guarantied Obligations or any collateral now or in the future serving as security for the Guarantied Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the 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 Guarantied Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the 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) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate all or any part of the Guarantied Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantor);
(xi) proceed against the Borrower, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent or any 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 as to any 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 Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any 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 Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other guarantor of all or any part of the Guarantied Obligations as the Administrative Agent or any Lender may desire; and
(xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the enforceability and effectiveness of this Guaranty and the liability of the Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders, under this Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Guarantor hereby expressly waives any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Obligations of the Borrower, or any other guarantor of all or 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 Guarantied Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “"Credit Agreement” " or a “"Parity Debt Agreement” " under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all or any part of the Guarantied Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Obligations);
(v) any failure of the Administrative Agent or any 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 Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other 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 's liability under this Guaranty, 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 Guarantied Obligations may be due and payable and that the Borrower may be in default of their obligations under any Loan Document;
(vi) any failure of the Administrative Agent or any 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 Guarantied Obligations) for all or any part of the 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 Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the 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 Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude 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 Administrative Agent, any 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 Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s 's or guarantor’s 's obligation in proportion to the principal obligation;
(xii) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiii) 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 Guarantied Obligations;
(xiv) any failure of the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(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 Administrative Agent or any Lender for any reason;
(xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Obligations (or any interest on all or any part of the Guarantied Obligations) in or as a result of any such proceeding;
(xx) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty or by any other provision of any 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 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 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 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 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 Administrative 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 Administrative 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. The Guarantor Each Obligor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the Guarantor such Obligor and that such obligations of the Guarantor are, to the fullest extent permitted by law, such Obligor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the Guarantor agrees, to the fullest extent permitted by law, each Obligor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the Guarantorsuch Obligor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under this GuarantyAgreement, the Administrative Agent and the Lenders 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any Loan 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 Loan Exchange Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
; (iv) accept or receive (including from any other guarantorObligor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorObligor);
; (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 guarantorObligor) for or relative to all or any part of the Guarantied 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 guarantorObligor) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender Trustee may in its discretion determine;
; (viii) release any Person (including any other guarantorObligor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders Trustee may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantorObligor);
; (x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other guarantorObligor);
; (xi) proceed against the BorrowerCompany, the Guarantor such or any other Obligor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under the Loan Exchange Documents or otherwise in such order and such manner as the Administrative Agent or any Lender 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 any guarantor;
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 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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender Trustee may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any Lender Trustee a party in possession in contemplation of law, except at its option);
; (xiv) 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 of all or any part of the Guarantied Guaranteed Obligations as the Administrative Agent or any Lender Trustee may desire; and
and (xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the GuarantorObligors, and the rights, remedies, powers and privileges of the Administrative Agent Holders and the LendersTrustee, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the Guarantor each Obligor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Guaranteed Obligations, any Loan Exchange Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the BorrowerCompany, any other Obligor or any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letters of credit)Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guarantied Guaranteed Obligations or the obligations of any such other guarantor;
; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
Guaranteed Obligations; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other Obligor or any other guarantor of all or any part of the Guarantied Guaranteed Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
; (v) any failure of the Administrative Agent Holders or any Lender 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 Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Obligor, the BorrowerCompany, any other guarantor of all or any part of the Guarantied 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 or any other the Guarantor’s Obligor's liability under this GuarantyAgreement, neither the Administrative Agent nor any Lender Holders and the Trustee being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower Company may be in default of their its obligations under any Loan Exchange Document;
; (vi) any failure of the Administrative Agent Holders or any Lender 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed Obligations to the BorrowerCompany, the Guarantor any Obligor or any other Person or any defect in, or any failure by the 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 the Administrative Agent Holders or any Lender the Trustee to comply with applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor any Obligor or may preclude the 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 BorrowerCompany, the Guarantor any Obligor 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;
jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of the Administrative AgentHolders, any Lender 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
; (xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s 's or guarantor’s 's obligation in proportion to the principal obligation;
; (xii) the possibility that the obligations of the Borrower Company to the Administrative Agent and Holders or the Lenders Trustee may at any time and from time to time exceed the aggregate liability of the Guarantor Obligors under this Guaranty;
Agreement; (xiii) 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 Guarantied Guaranteed Obligations;
; (xiv) any failure of the Administrative Agent Holders or any Lender the Trustee to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xv) the election by the Holders or the Trustee, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code; (xvi) 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 the Administrative Agent Holders or any Lender the Trustee for any reason;
; (xixxx) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
; (xxxxi) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, Trustee that is authorized by this Section 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Loan Exchange Document or any omission to take any such action; or
or (xxixxii) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, whatsoever 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 Each Obligor expressly waives, for the benefit of the Administrative Agent Trustee and the LendersHolders, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty Agreement or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the Guarantor 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) The Guarantor Each Obligor represents and warrants to the Administrative Agent and the Lenders 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 Borrower Company and its properties on a continuing basis and that the Guarantor such Obligor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower Company and its properties. The Guarantor Each Obligor further represents and warrants that it has reviewed and approved each of the Loan Exchange Documents and is fully familiar with the transactions contemplated by the Loan Exchange Documents and that it will in the future remain fully familiar with such transactions and with any new Loan Exchange Documents and the transactions contemplated by such Loan Exchange Documents. The Guarantor Each Obligor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders Holders (should any such duty exist) to disclose to the Guarantor such or any other guarantor Obligor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower Company or its properties or to any Loan Exchange Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Exchange Document, whether now or in the future known by the Administrative Agent or any LenderHolders.
(e) The Guarantor Each Obligor intends that its rights and obligations shall be those expressly set forth in this Guaranty Agreement and that, to the fullest extent permitted by law, 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 GuarantyAgreement.
(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: Subordinated Guarantee and Security Agreement (Inamed Corp)
Acknowledgments, Waivers and Consents. The Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the such Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the each Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and terms, without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, any Guarantor or the rights, remedies, powers and privileges of the Collateral Agent, the Administrative Agent and the Lenders under this GuarantyGuaranty Agreement and without modifying the rights or obligations of the Borrower under the Credit Documents, the 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any Loan 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 Loan Credit Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
(iv) accept or receive (including from any other guarantorGuarantor or other Person) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorGuarantor 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 guarantorGuarantor or other Person) for or relative to all or any part of the Guarantied 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 guarantorGuarantor or other Person) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Collateral Agent, the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantorGuarantor or other Person) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Collateral Agent, the Administrative Agent or the Lenders may determine or as applicable law Governmental Rules may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantorGuarantor or other Person);
(x) consent to the any merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantorGuarantor or other Person);
(xi) proceed against the Borrower, the such Guarantor, any other Guarantor or any other guarantor of Person (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Collateral Agent, the Administrative Agent and the Lenders under the Loan Credit Documents or otherwise in such order and such manner as the Collateral Agent, the Administrative Agent or any 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 any guarantorsuch 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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Collateral Agent, the Administrative Agent or any 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 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 of all Guarantor or any part of other Person as the Guarantied Obligations as Collateral Agent, the Administrative Agent or any Lender may desire; and
(xvxvi) do all or any combination of the actions set forth in this Section 2.02(a3(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the each Guarantor, and the rights, remedies, powers and privileges of the Collateral Agent, the Administrative Agent and the Lenders, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the such Guarantor hereby expressly waives to the fullest extent not prohibited by applicable Governmental Rules any defense now or in the future arisingarising (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 Guarantied Guaranteed Obligations, any Loan Credit Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the Borrower, or any other guarantor of all Guarantor or any part of the Guarantied Obligations 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 Guarantied Guaranteed Obligations or the obligations of any such other guarantorGuarantor 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 Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all Guarantor or any part of the Guarantied Obligations other Person (other than, subject to Section 2.054, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
(v) any failure of the Collateral Agent, the Administrative Agent or any 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 Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other guarantor of all or any part of the Guarantied Obligations Guarantor (including any issuer of any letter Letter of creditCredit) or any other Person or to take any action whatsoever to mitigate or reduce such or any other the Guarantor’s liability under this GuarantyGuaranty Agreement, neither 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 Guarantied Guaranteed Obligations may be due and payable and that the Borrower or any other Guarantor may be in default of their its obligations under any Loan Credit Document;
(vi) any failure of the Collateral Agent, the Administrative Agent or any 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed 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 Collateral Agent, the Administrative Agent or any Lender to comply with applicable laws Governmental Rules in connection with the sale or other disposition of any collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude the 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 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 Collateral Agent, the Administrative Agent, any 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
(xix) any 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 or guarantor’s obligation in proportion to the principal obligation;
(xiixi) the possibility that the obligations of the Borrower to the Collateral Agent, the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the such Guarantor under this GuarantyGuaranty Agreement;
(xiiixii) 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 Guarantied Guaranteed Obligations;
(xivxiii) any failure of the Collateral Agent, the Administrative Agent or any 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 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, 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 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 Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
(xix) any failure by the Collateral Agent, the Administrative Agent or any Lender to enforce the subordination of any junior or subordinated indebtedness or any security thereof; or
(xx) any action taken by the Collateral Agent, the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 3 or otherwise in this Guaranty Agreement or by any other provision of any Loan Credit 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 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 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 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 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 Administrative 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 Administrative 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
Acknowledgments, Waivers and Consents. The Guarantor Each Obligor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the Guarantor such Obligor and that such obligations of the Guarantor are, to the fullest extent permitted by law, such Obligor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the Guarantor agrees, to the fullest extent permitted by law, each Obligor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the Guarantorsuch Obligor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under this GuarantyAgreement, the Administrative Collateral 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any 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 Loan Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
; (iv) accept or receive (including from any other guarantorObligor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorObligor);
; (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 guarantorObligor) for or relative to all or any part of the Guarantied 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 guarantorObligor) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Collateral Agent or any Lender may in its discretion determine;
; (viii) release any Person (including any other guarantorObligor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Collateral Agent or the Lenders may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantorObligor);
; (x) consent to the merger or consolidation of, the state sale of subsantial substantial assets by, or other restructuring or termination of the corporate existence of the Borrower Company or any other Person (including any other guarantorObligor);
; (xi) proceed against the BorrowerCompany, the Guarantor such or any other Obligor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Holders under the Loan Documents or otherwise in such order and such manner as the Administrative Collateral Agent or any 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 any guarantor;
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 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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Collateral Agent or any Lender may in its discretion determine (it being agreed that nothing in this clause (xiii) shall be deemed to make the Administrative Collateral Agent or any Lender a party in possession in contemplation of law, except at its option);
; (xiv) 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 of all or any part of the Guarantied Guaranteed Obligations as the Administrative Collateral Agent or any Lender may desire; and
and (xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the GuarantorObligors, and the rights, remedies, powers and privileges of the Administrative Agent Holders and the LendersCollateral Agent, under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the Guarantor each Obligor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Guaranteed Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the BorrowerCompany, any other Obligor or any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letters of credit)Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guarantied Guaranteed Obligations or the obligations of any such other guarantor;
; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
Guaranteed Obligations; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower Company, any other Obligor or any other guarantor of all or any part of the Guarantied Guaranteed Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
; (v) any failure of the Administrative Holders or the Collateral Agent or any Lender 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 Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other Obligor, the BorrowerCompany, any other guarantor of all or any part of the Guarantied 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 or any other the Guarantor’s Obligor's liability under this GuarantyAgreement, neither the Administrative Holders and the Collateral Agent nor any Lender being under any no obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower Company may be in default of their its obligations under any Loan Document;
; (vi) any failure of the Administrative Holders or the Collateral Agent or any Lender 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed Obligations to the BorrowerCompany, the Guarantor any Obligor or any other Person or any defect in, or any failure by the 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 the Administrative Holders or the Collateral Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral Collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor any Obligor or may preclude the 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 BorrowerCompany, the Guarantor any Obligor 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;
jurisdiction of the nature of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any act or omission of the Administrative AgentHolders, any Lender 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
; (xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s 's or guarantor’s 's obligation in proportion to the principal obligation;
; (xii) the possibility that the obligations of the Borrower Company to the Administrative Holders or the Collateral Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor Obligors under this Guaranty;
Agreement; (xiii) 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 Guarantied Guaranteed Obligations;
; (xiv) any failure of the Administrative Holders or the Collateral Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
; (xv) the election by the Holders or the Collateral Agent, in any bankruptcy proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of the Bankruptcy Code; (xvi) 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 the Administrative Holders or the Collateral Agent or any Lender for any reason;
; (xixxx) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
; (xxxxi) any action taken by the Administrative Collateral Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Loan Document or any omission to take any such action; or
or (xxixxii) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, whatsoever 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 Each Obligor expressly waives, for the benefit of the Administrative Collateral Agent and the LendersHolders, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty Agreement or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the Guarantor 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) The Guarantor Each Obligor represents and warrants to the Administrative Agent and the Lenders 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 Borrower Company and its properties on a continuing basis and that the Guarantor such Obligor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower Company and its properties. The Guarantor 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. The Guarantor Each Obligor hereby expressly waives and relinquishes any duty on the part of the Administrative Agent or the Lenders Holders (should any such duty exist) to disclose to the Guarantor such or any other guarantor Obligor any matter of fact or other information related to the business, operations or condition (financial or otherwise) of the Borrower 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 Administrative Agent or any LenderHolders.
(e) The Guarantor Each Obligor intends that its rights and obligations shall be those expressly set forth in this Guaranty Agreement and that, to the fullest extent permitted by law, 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 GuarantyAgreement.
(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: Guarantee and Security Agreement (Appaloosa Management Lp)
Acknowledgments, Waivers and Consents. The Guarantor Obligor acknowledges that ------------------------------------- the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons persons other than the Guarantor Obligor and that such obligations of the Guarantor are, to the fullest extent permitted by law, Obligor are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the Guarantor agrees, to the fullest extent permitted by law, Obligor agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and without affecting, limiting, reducing, discharging or terminating the liability of the GuarantorObligor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Siena under this GuarantyAgreement, the Administrative Agent and the Lenders 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any Loan 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 Loan DocumentBasic Document with Borrower or other parties related to Borrower, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
; (iv) accept or receive (including from any other guarantor) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the Guarantied 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) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender Siena may in its discretion determine;
; (viii) release any Person person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
; (ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders Siena may determine or as applicable law may dictate all or any part of the Guarantied Guaranteed Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations (including with any other guarantor);
(xguarantor);(x) consent to the merger or consolidation of, the state sale of subsantial 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);
; (xi) proceed against the BorrowerCompany, the Guarantor such or any other guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Guaranteed Obligations or any collateral provided by any Person person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Siena under the Loan Basic Documents or otherwise in such order and such manner as the Administrative Agent or any Lender 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 any guarantor;
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 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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender Siena may in its discretion determine (it being agreed that nothing in this clause (xiii) shall ------------- be deemed to make the Administrative Agent or any Lender Siena a party in possession in contemplation of law, except at its option);
; (xiv) 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 of all or any part of the Guarantied Guaranteed Obligations as the Administrative Agent or any Lender Siena may desire; and
and (xv) do all or any combination of the actions set forth in this Section 2.02(a).. --------------- Pledge and Guarantee Agreement ------------------------------ - 3 -
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty Agreement and the liability of the GuarantorObligor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders, Siena under this Guaranty Agreement shall not be affected, limited, reduced, discharged or terminated, and the Guarantor Obligor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising, by reason of:
: (i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Guaranteed Obligations, any Loan Basic Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
; (ii) any disability or other defense with respect to all or any part of the Guarantied Guaranteed Obligations of the BorrowerCompany, any other guarantor or any other guarantor of all or any part of the Guarantied Obligations (including any issuer of any letters of credit)Guaranteed Obligations, including the effect of any statute of limitations that may bar the enforcement of all or any part of the Guarantied Guaranteed Obligations or the obligations of any such other guarantor;
; (iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
Guaranteed Obligations; (iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all or any part of the Guarantied Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Obligations);
(v) any failure of the Administrative Agent or any Lender Siena to marshal assets in favor of the Borrower Company or any other Person person (including any other guarantor), to exhaust any collateral for all or any part of the Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any other guarantor, the BorrowerCompany, any other guarantor of all or any part of the Guarantied Guaranteed 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 or any other the Guarantor’s guarantor's liability under this GuarantyAgreement, neither the Administrative Agent nor any Lender Siena not being under any obligation to take any such action notwithstanding the fact that all or any part of the Guarantied Guaranteed Obligations may be due and payable and that the Borrower Company may be in default of their its obligations under any Loan Basic Document;
; (viv) any failure of the Administrative Agent or any Lender 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed Obligations to the BorrowerCompany, the Guarantor any Obligor or any other Person person or any defect in, or any failure by the 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 the Administrative Agent or any Lender Siena to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor any Obligor or may preclude the 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;
; (ixviii) any benefits the BorrowerCompany, the Guarantor any Obligor 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;
jurisdiction of the nature of a "one-form-of- action," "anti-deficiency" or "security-first" rule; (xix) any act or omission of the Administrative Agent, any Lender 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Pledge and Guarantee Agreement ------------------------------ - 4 - Guaranteed Obligations by operation of law or otherwise;
; (xix) any 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 's or guarantor’s Obligor's obligation in proportion to the principal obligation;
; (xiixi) the possibility that the obligations of the Borrower Company to the Administrative Agent and the Lenders Siena may at any time and from time to time exceed the aggregate liability of the Guarantor Obligor under this Guaranty;
Agreement; (xiiixii) 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 Guarantied Guaranteed Obligations;
; (xivxiii) any failure of the Administrative Agent or any Lender Siena to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
person; (xiv) the election by Siena, in any bankruptcy proceeding of any person, of the application or nonapplication of Section 1111(b)(2) of 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 the Administrative Agent or any Lender Siena for any reason;
; (xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Personperson, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;
; (xx) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, Siena that is authorized by this Section 2.02 or otherwise in this Guaranty Agreement or by any other provision of any Loan Basic Document or any omission to take any such action; or
or (xxi) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, whatsoever 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 jurisdictionObligor.
(c) To the fullest extent permitted by law, the Guarantor The Obligor expressly waives, for the benefit of the Administrative Agent and the LendersSiena, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty Agreement or of the existence, creation, incurring or assumption of new or additional Guarantied Guaranteed Obligations. To the fullest extent permitted by law, the Guarantor 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 Guarantor Obligor represents and warrants to the Administrative Agent and the Lenders 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 Borrower Company and its properties on a continuing basis and that the Guarantor such Obligor is now and will in the future remain fully familiar with the business, operations and condition (financial and otherwise) of the Borrower Company and its properties. The Guarantor Obligor further represents and warrants that it has reviewed and approved each of the Loan Basic Documents and is fully familiar with the transactions transaction contemplated by the Loan Basic Documents and that it will in the future remain fully familiar with such transactions transaction and with any new Loan Basic Documents and the transactions contemplated by such Loan Basic Documents. The Guarantor Obligor hereby expressly waives and relinquishes any Pledge and Guarantee Agreement ------------------------------ - 5 - duty on the part of the Administrative Agent or the Lenders (should any such duty exist) Siena to disclose to the Guarantor 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 Company or its properties or to any Loan Basic Document or the transactions undertaken pursuant to, or contemplated by, any such Loan Basic Document, whether now or in the future known by the Administrative Agent or any LenderSiena.
(e) The Guarantor Obligor intends that its rights and obligations shall be those expressly set forth in this Guaranty Agreement and that, to the fullest extent permitted by law, 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 GuarantyAgreement.
(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
Acknowledgments, Waivers and Consents. The Guarantor acknowledges that the obligations undertaken by it under this Guaranty involve the guarantee of obligations of Persons other than the Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty in accordance with its terms and terms, without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lender under this GuarantyGuaranty and without modifying the rights or obligations of the Borrower under the Loan Documents, the Administrative Agent and the Lenders 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any 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 Loan Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
(iv) accept or receive (including from any other guarantorguarantor of the Obligations or other Person) partial payments or performance on the Guarantied 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 Guarantied Guaranteed Obligations (including from any other guarantorguarantor 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 guarantorguarantor of the Obligations or other Person) for or relative to all or any part of the Guarantied 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 guarantorguarantor of the Obligations or other Person) to all or any part of the Guarantied Guaranteed Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantorguarantor of the Obligations or other Person) from any personal liability with respect to all or any part of the Guarantied Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders Lender may determine or as applicable law laws may dictate all or any part of the Guarantied 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 Guarantied Guaranteed Obligations (including with any other guarantorguarantor of the Obligations or other Person);
(x) consent to the merger or consolidation of, the state of subsantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantor);
(xi) proceed against the Borrower, the Guarantor or Guarantor, any other 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 Guarantied Guaranteed Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Lender under the Loan Documents or otherwise in such order and such manner as the Administrative Agent or any 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 as to any guarantorGuarantor;
(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 Guarantied Guaranteed Obligations and apply the proceeds of such receivership as the Administrative Agent or any Lender may in its discretion determine (it being agreed that nothing in this clause (xiiixi) shall be deemed to make the Administrative Agent or any 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;
(xiii) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate affiliate of the Borrower or any other guarantor of all or any part of the Guarantied Obligations Person as the Administrative Agent or any Lender may desire; and
(xvxiv) do all or any combination of the actions set forth in this Section 2.02(a3(a).
(b) To the fullest extent permitted by law, the The enforceability and effectiveness of this Guaranty and the liability of the Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the LendersLender, under this Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Guarantor hereby expressly waives to the fullest extent not prohibited by applicable laws any defense now or in the future arisingarising (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 Guarantied Guaranteed Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Obligations of the BorrowerGuaranteed Obligations, or any other guarantor of all the Obligations or any part of the Guarantied Obligations 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 Guarantied Guaranteed Obligations or the obligations of any such other guarantorguarantor 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 Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason)Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all the Obligations or any part of the Guarantied Obligations other Person (other than, subject to Section 2.054, by reason of the full payment and performance of all Guarantied Guaranteed Obligations);
(v) any failure of the Administrative Agent or any 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 Guarantied Guaranteed Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other 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 's liability under this Guaranty, 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 Guarantied Obligations may be due and payable and that the Borrower may be in default of their obligations under any Loan Document;
(vi) any failure of the Administrative Agent or any 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 Guarantied Guaranteed Obligations) for all or any part of the Guarantied Guaranteed 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 Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the Guarantied 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 Guarantied Guaranteed Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude 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 Administrative Agent, any 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 Guarantied Guaranteed Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Guaranteed Obligations by operation of law or otherwise;
(xix) any 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 's or guarantor’s 's obligation in proportion to the principal obligation;
(xiixi) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders Lender may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiiixii) 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 Guarantied 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 the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any PersonPerson or the election by the 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, 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 the Administrative Agent or any Lender for any reason;
(xixxvii) any change in the 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, Guarantor or any other Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Guaranteed Obligations (or any interest on all or any part of the Guarantied Guaranteed Obligations) in or as a result of any such proceeding;; or
(xxxviii) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 3 or otherwise in this Guaranty or by any other provision of any 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 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 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 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 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 Administrative 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 Administrative 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 (Envirokare Tech Inc)
Acknowledgments, Waivers and Consents. The Each Guarantor acknowledges that the obligations undertaken by it under this Guaranty Agreement involve the guarantee of obligations of Persons other than the such Guarantor and that such obligations of the Guarantor are, to the fullest extent permitted by law, are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and in furtherance of the foregoing, the each Guarantor agrees, to the fullest extent permitted by law, agrees that:
(a) Without affecting the enforceability or effectiveness of this Guaranty Agreement in accordance with its terms and terms, without affecting, limiting, reducing, discharging or terminating the liability of the Guarantor, any Guarantor or the rights, remedies, powers and privileges of the Administrative Agent and the Lenders Guaranteed Parties under this GuarantyGuaranty Agreement and without modifying the rights or obligations of the Borrower under the Guaranty Documents, the Administrative Agent and the Lenders 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 Guarantied 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 Guarantied 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 Guarantied Guaranteed Obligations, any Loan 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 Loan Guaranty Document, all or any part of the Guarantied Guaranteed Obligations or any collateral now or in the future serving as security for the Guarantied Guaranteed Obligations;
(iv) accept or receive (including from any other guarantor) partial payments or performance on the 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 Guarantied Obligations (including from any other 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 (including letters of credit or the obligations of any other guarantor) for or relative to all or any part of the 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) to all or any part of the Guarantied Obligations in such manner and extent as the Administrative Agent or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability with respect to all or any part of the Guarantied Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such manner as the Administrative Agent or the Lenders may determine or as applicable law may dictate all or any part of the Guarantied Obligations or any collateral on or guarantee of (including any letter of credit issued with respect to) all or any part of the Guarantied Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of, the state of subsantial assets by, or other restructuring or termination of the existence of the Borrower or any other Person (including any other guarantor);
(xi) proceed against the Borrower, the Guarantor or any other guarantor of (including any issuer of any letter of credit issued with respect to) all or any part of the Guarantied Obligations or any collateral provided by any Person and exercise the rights, remedies, powers and privileges of the Administrative Agent and the Lenders under the Loan Documents or otherwise in such order and such manner as the Administrative Agent or any 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 as to any 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 Guarantied Obligations and apply the proceeds of such receivership as the Administrative Agent or any 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 Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with the Borrower, any Subsidiary or Affiliate of the Borrower or any other guarantor of all or any part of the Guarantied Obligations as the Administrative Agent or any Lender may desire; and
(xv) do all or any combination of the actions set forth in this Section 2.02(a).
(b) To the fullest extent permitted by law, the enforceability and effectiveness of this Guaranty and the liability of the Guarantor, and the rights, remedies, powers and privileges of the Administrative Agent and the Lenders, under this Guaranty shall not be affected, limited, reduced, discharged or terminated, and the Guarantor hereby expressly waives any defense now or in the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any part of the Guarantied Obligations, any Loan Document or any agreement, security document, guarantee or other instrument relative to all or any part of the Guarantied Obligations;
(ii) any disability or other defense with respect to all or any part of the Guarantied Obligations of the Borrower, or any other guarantor of all or 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 Guarantied Obligations or the obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of any security or guarantee (including any letter of credit) for all or any part of the Guarantied 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 Guarantied Obligations (or the failure, now or hereafter, of the Credit Agreement to constitute the “Credit Agreement” or a “Parity Debt Agreement” under (and as defined in) the Intercreditor Agreement or the Security Agreement for any reason);
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any other guarantor of all or any part of the Guarantied Obligations (other than, subject to Section 2.05, by reason of the full payment and performance of all Guarantied Obligations);
(v) any failure of the Administrative Agent or any 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 Guarantied Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against the Borrower, any other 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, 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 Guarantied Obligations may be due and payable and that the Borrower may be in default of their obligations under any Loan Document;
(vi) any failure of the Administrative Agent or any 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 Guarantied Obligations) for all or any part of the 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 Administrative Agent or any Lender to comply with applicable laws in connection with the sale or other disposition of any collateral for all or any part of the 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 Guarantied Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of the Guarantor or may preclude 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 Administrative Agent, any 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 Guarantied Obligations or any security or guarantee (including any letter of credit) for all or any part of the Guarantied Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation;
(xii) the possibility that the obligations of the Borrower to the Administrative Agent and the Lenders may at any time and from time to time exceed the aggregate liability of the Guarantor under this Guaranty;
(xiii) 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 Guarantied Obligations;
(xiv) any failure of the Administrative Agent or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person;
(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 Administrative Agent or any Lender for any reason;
(xix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Guarantied Obligations (or any interest on all or any part of the Guarantied Obligations) in or as a result of any such proceeding;
(xx) any action taken by the Administrative Agent or any Lender, whether similar or dissimilar to any of the foregoing, that is authorized by this Section 2.02 or otherwise in this Guaranty or by any other provision of any 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 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 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 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 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 Administrative 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 Administrative 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: Credit Agreement (Cinedigm Corp.)
