California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security Agreement, each Grantor represents, warrants, covenants and agrees as follows: 8.20.1 The obligations of such Grantor under this Security Agreement shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents or thereafter ceases to be liable. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Grantor’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant Subsidiary. Each Grantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement and agrees that such Grantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder. 8.20.2 In accordance with Section 2856 of the California Civil Code, each Grantor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, has destroyed or otherwise impaired such Grantor’s rights of subrogation and reimbursement against the principal. Each Grantor hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor that its obligations under this Security Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Obligations until all of the Notes Obligations (other than obligations expressly stated to survive such payment) have been paid and satisfied in full in cash. In connection with the foregoing, each Grantor expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer or any Subsidiary, and each Grantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Obligations.
Appears in 4 contracts
Samples: Pledge and Security Agreement (Microchip Technology Inc), Pledge and Security Agreement (Microchip Technology Inc), Pledge and Security Agreement (Microchip Technology Inc)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security Agreement, each Grantor represents, warrants, covenants and agrees as follows:
8.20.1 The obligations of such Grantor under this Security Agreement shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 (a) Guarantor understands and agrees that by doing so such Grantor shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time waivers contained in this Section 6.04 are waivers of execution of the applicable Notes Documents or thereafter ceases to be liable. Each Grantor hereby waives to the extent permitted by law any and all benefits substantive rights and defenses to which Guarantor might otherwise be entitled under state and federal law. The rights and defenses waived include, without limitation, those provided by California Civil Code Section 2809 laws of suretyship and agrees guaranty, antideficiency laws, and the Uniform Commercial Code. Guarantor acknowledges that by doing so such Grantor’s liability may be larger in amount Guarantor has provided these waivers of rights and more burdensome than that of the Issuer and/or the relevant Subsidiary. Each Grantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict defenses with the terms intention that they be fully relied upon by the Banks and/or Agents.
(b) Guarantor waives Guarantor's rights of this Security Agreement subrogation, reimbursement, indemnity and agrees that such Grantor’s obligations shall not be affected by any circumstancescontribution, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights and defenses available to Guarantor by reason of sureties and guarantors thereunder.
8.20.2 In accordance with Section 2856 Sections 2787 to 2855, inclusive, of the California Civil Code, each Grantor hereby waives as amended or recodified from time to time, including without limitation (i) any defenses Guarantor may have to the Guaranteed Obligations by reason of an election of remedies by the Banks and/or Agents, and (ii) any rights or defenses Guarantor may have by reason of protection afforded to Borrower with respect to the Guaranteed Obligations pursuant to the antideficiency or other laws of the State of California limiting or discharging Borrower's indebtedness, including, without limitation, Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure, as amended or recodified from time to time.
(c) If and to the extent permitted such waivers of Guarantor's rights of subrogation, reimbursement, indemnity and contribution, and any other rights and defenses waived by law Guarantor hereunder are unenforceable, Guarantor hereby agrees that all such rights shall be junior and subordinate to the rights of the Banks and/or Agents to obtain payment and performance of the Guaranteed Obligations and to all rights of the Banks and/or Agents in and to any property, including the Property, which now or hereafter serves or could serve as collateral security for the Guaranteed Obligations.
(d) The above waivers include, but are not limited to, the waiver by Guarantor of:
(i) all rights and defenses arising out of an election of remedies by any Secured Party the Banks and/or Agents, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, remedies has destroyed Guarantor's rights or otherwise impaired such Grantor’s rights of subrogation and and/or reimbursement against Borrower by the principal. Each Grantor hereby authorizes operation of Section 580d of the California Code of Civil Procedure or otherwise;
(ii) all rights and empowers protections of any kind which Guarantor may have for any reason which would affect or limit the Secured Parties amount of any recovery by the Banks and/or Agents from Guarantor including, without limitation, the right to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is fair market value hearing pursuant to Section 580a of the intent and purpose California Code of such Grantor that its obligations under this Security Agreement shall be absolute, independent and unconditional under Civil Procedure.
(iii) any and all circumstances. Specifically, benefits available to sureties and without in any way limiting the foregoing, each Grantor hereby waives creditors which might otherwise be available to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising Guarantor under Sections 2846, 2847, 2848 and 2849 of the California Civil Code Sections 2809 (reduction of surety's obligation where larger than principal's), 2810 (liability of surety when principal is not liable), 2815 (revocation of continuing guaranty), 2819 (exoneration of surety), 2839 (performance of principal obligation or offer of performance), 2845 (requiring creditor to proceed against principal), 2849 (security for performance of principal obligation), 2850 (hypothecation of surety's property), 2899 (order of resort to property), and 3433 (creditor's entitlement to satisfy claim from several funds), as amended or recodified from time to time; and
(e) Guarantor shall not be discharged, released or exonerated, in any other right way, from its absolute, unconditional and independent liabilities hereunder, even though any rights or defenses which Guarantor may have against Borrower, the Banks, the Agents or others may be destroyed, diminished or otherwise affected, by:
(i) Any declaration by the Banks and/or Agents of recourse to or with a default in respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing Guaranteed Obligations;
(ii) The exercise by the Banks and/or Agents of any rights or to remedies against Borrower or any collateral for the Notes Obligations until all other person;
(iii) The failure of the Notes Obligations (other than obligations expressly stated Banks and/or Agents to survive such payment) have been paid and satisfied in full in cash. In connection with the foregoing, each Grantor expressly waives to the extent permitted by law exercise any and all rights of subrogation or remedies against the Issuer Borrower or any Subsidiary, and each Grantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Obligations.other person; or
Appears in 2 contracts
Samples: Senior Unsecured Credit Agreement (American General Hospitality Corp), Subordinate Unsecured Credit Agreement (American General Hospitality Corp)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security Agreement, each Grantor represents, warrants, covenants and agrees as follows:
8.20.1 8.21.1 The obligations of such Grantor under this Security Agreement shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Agreements or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor shall be liable even if the Issuer Borrower or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Agreements or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Grantor’s liability may be larger in amount and more burdensome than that of the Issuer Borrower and/or the relevant Subsidiary. Each Grantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement and agrees that such Grantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 8.21.2 In accordance with Section 2856 of the California Civil Code, each Grantor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, has destroyed or otherwise impaired such Grantor’s rights of subrogation and reimbursement against the principal. Each Grantor hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor that its obligations under this Security Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer Borrower or any Subsidiary, any constituent of the Issuer Borrower or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Obligations until all of the Notes Obligations (other than obligations under any Swap Agreement or Banking Services Agreement, in each case not due and payable, and other obligations expressly stated to survive such paymentpayment or termination) have been paid and satisfied in full in cashcash and the Commitments have terminated or expired and all Letters of Credit have expired or terminated (or otherwise become subject to cash collateralization or other arrangements reasonably satisfactory to the Administrative Agent). In connection with the foregoing, each Grantor expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer Borrower or any Subsidiary, and each Grantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer Borrower or any Subsidiary and any right to participate in any collateral for the Notes Obligations.
8.21.3 Without limiting the generality of the foregoing, each Grantor hereby waives, to the fullest extent permitted by law, diligence in collecting the Obligations, presentment, demand for payment, protest, all notices with respect to this Security Agreement, or any other Loan Document, Swap Agreement or Banking Services Agreement which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against such Grantor under this Security Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, any Swap Agreement or any Banking Services Agreement, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Borrower or any Subsidiary of any obligation or Indebtedness.
8.21.4 Without limiting the foregoing, each Grantor waives to the extent permitted by law all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Grantor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Grantor may have by reason of protection afforded to the Borrower or any Subsidiary with respect to any of the obligations of such Grantor under this Security Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Obligations. Without limiting the generality of the foregoing, each Grantor hereby expressly waives to the extent permitted by law any and all benefits under California Code of Civil Procedure Sections 580b(b) (which Section, if such Grantor had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations).
8.21.5 Likewise, each Grantor waives to the extent permitted by law (i) any and all rights and defenses available to such Grantor under California Civil Code Sections 2899 and 3433 and (ii) any rights or defenses such Grantor may have with respect to its obligations as a guarantor by reason of any election of remedies by any Secured Party.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Microchip Technology Inc), Pledge and Security Agreement (Microchip Technology Inc)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security AgreementGuaranty, each Grantor Guarantor represents, warrants, covenants and agrees as follows:
8.20.1 (a) The obligations of such Grantor Guarantor under this Security Agreement Guaranty shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Agreements or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor Guarantor shall be liable even if the Issuer Borrower or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Agreements or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such GrantorGuarantor’s liability may be larger in amount and more burdensome than that of the Issuer Borrower and/or the relevant Subsidiary. Each Grantor Guarantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement Guaranty and agrees that such GrantorGuarantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement Guaranty which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (b) In accordance with Section 2856 of the California Civil Code, each Grantor Guarantor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, has destroyed or otherwise impaired such GrantorGuarantor’s rights of subrogation and reimbursement against the principal. Each Grantor Guarantor hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor Guarantor that its obligations under this Security Agreement Guaranty shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor Guarantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer Borrower or any Subsidiary, any constituent of the Issuer Borrower or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Obligations until all of the Notes Obligations (other than obligations under any Swap Agreement or Banking Services Agreement, in each case not due and payable, and other obligations expressly stated to survive such paymentpayment or termination) have been paid and satisfied in full in cashcash and the Commitments have terminated or expired and all Letters of Credit have expired or terminated (or otherwise become subject to cash collateralization or other arrangements reasonably satisfactory to the Administrative Agent). In connection with the foregoing, each Grantor Guarantor expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer Borrower or any Subsidiary, and each Grantor Guarantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer Borrower or any Subsidiary and any right to participate in any collateral for the Notes Obligations.
(c) Without limiting the generality of the foregoing, each Guarantor hereby waives, to the fullest extent permitted by law, diligence in collecting the Obligations, presentment, demand for payment, protest, all notices with respect to this Guaranty, or any other Loan Document, Swap Agreement or Banking Services Agreement which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against such Guarantor under this Guaranty, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, any Swap Agreement or any Banking Services Agreement, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Borrower or any Subsidiary of any obligation or Indebtedness.
(d) Without limiting the foregoing, each Guarantor waives to the extent permitted by law all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Guarantor may have by reason of protection afforded to the Borrower or any Subsidiary with respect to any of the obligations of such Guarantor under this Guaranty by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Obligations. Without limiting the generality of the foregoing, each Guarantor hereby expressly waives to the extent permitted by law any and all benefits under California Code of Civil Procedure Sections 580(b) (which Section, if such Guarantor had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations).
(e) Likewise, each Guarantor waives to the extent permitted by law (i) any and all rights and defenses available to such Guarantor under California Civil Code Sections 2899 and 3433 and (ii) any rights or defenses such Guarantor may have with respect to its obligations as a guarantor by reason of any election of remedies by any Secured Party.
Appears in 2 contracts
Samples: Credit Agreement (Microchip Technology Inc), Guaranty (Microchip Technology Inc)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security AgreementArticle X, each Grantor the Borrower represents, warrants, covenants and agrees as follows:
8.20.1 (a) The obligations of such Grantor the Borrower under this Security Agreement Article X shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Agreements or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor The Borrower hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor the Borrower shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Agreements or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor The Borrower hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Grantorthe Borrower’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant SubsidiarySubsidiaries. Each Grantor The Borrower hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement Article X and agrees that such Grantorthe Borrower’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement Article X which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor The Borrower hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (b) In accordance with Section 2856 of the California Civil Code, each Grantor the Borrower hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Secured Obligations, has destroyed or otherwise impaired such Grantorthe Borrower’s rights of subrogation and reimbursement against the principalprincipal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Grantor The Borrower hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor the Borrower that its obligations under this Security Agreement Article X shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor the Borrower hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Secured Obligations until (i) all of the Notes Secured Obligations (other than obligations expressly stated to survive such paymentUnliquidated Obligations) have been paid and satisfied in full in cashcash or cash collateralized pursuant to arrangements reasonably satisfactory to the Administrative Agent, as the case may be, and the Commitments have terminated or expired, (ii) all obligations (other than Unliquidated Obligations) owed to the Secured Parties under the Loan Documents, the Swap Agreements and the Banking Services Agreements have been fully performed, (iii) the Secured Parties have released, transferred or disposed of all their right, title and interest in such collateral or any other security for the Secured Obligations (other than Unliquidated Obligations) and (iv) there has expired the maximum possible period thereafter during which any payment made by the Borrower, any Subsidiary Guarantor or others to any Secured Party with respect to the Secured Obligations or any other obligations owed to the Secured Parties under the Loan Documents, the Swap Agreements and the Banking Services Agreements could be deemed a preference under the Bankruptcy Code of the United States. In connection with the foregoing, each Grantor the Borrower expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer or any Subsidiary, and each Grantor the Borrower hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Secured Obligations. The Borrower recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, the Secured Parties’ realization through nonjudicial foreclosure upon any real property constituting security for the Secured Obligations could terminate any right of the Secured Parties to recover a deficiency judgment against any Subsidiary, thereby terminating subrogation rights which other parties might otherwise have against such Subsidiary. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Article X against such parties. The Borrower’s hereby unconditionally and irrevocably waives any such defense.
(c) In addition to and without in any way limiting the foregoing, the Borrower hereby subordinates any and all Indebtedness of each Subsidiary now or hereafter owed to the Borrower to the prior payment in full in cash or cash collateralization pursuant to arrangements reasonably satisfactory to the Administrative Agent, as the case may be, of all the Secured Obligations (other than Unliquidated Obligations) owed by the Borrower or any of its Subsidiaries to the Secured Parties and the termination or expiration of the Commitments and agrees with the Secured Parties that until (i) all of the Secured Obligations (other than Unliquidated Obligations) have been paid and satisfied in full in cash or cash collateralization pursuant to arrangements reasonably satisfactory to the Administrative Agent, as the case may be, and the Commitments have terminated or expired, (ii) all obligations owed to the Secured Parties under the Loan Documents, the Swap Agreements and the Banking Services Agreements have been fully performed, (iii) the Secured Parties have released, transferred or disposed of all their right title and interest in such collateral or any other security for the Secured Obligations and (iv) there has expired the maximum possible period thereafter during which any payment made by the Borrower, any Subsidiary or others to the Secured Parties with respect to the Secured Obligations or any other obligations owed to the Secured Parties under the Loan Documents, the Swap Agreements or the Banking Services Agreements could be deemed a preference under the Bankruptcy Code of the United States, the Borrower shall not demand or accept any payment of principal or interest from any Subsidiary, claim any offset or other reduction of the Borrower’s obligations hereunder because of any such Indebtedness, nor take any action to obtain any of the collateral for the Secured Obligations, provided that, and not in contravention of the foregoing, so long as no Event of Default has occurred and is continuing, the Borrower may make loans and extend other intercompany Indebtedness to and receive payments with respect to such intercompany Indebtedness from each such obligor to the extent not prohibited by the terms of this Agreement. If any amount shall nevertheless be paid to the Borrower by any Subsidiary or another guarantor, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties. Further, the Borrower shall have no right of recourse against the Secured Parties by reason of any action any Secured Party may take or omit to take under the provisions of this Article X or under the provisions of any of the Loan Documents, Swap Agreements or Banking Services Agreements. Without limiting the generality of the foregoing, the Borrower hereby waives, to the fullest extent permitted by law, diligence in collecting the Secured Obligations, presentment, demand for payment, protest, all notices with respect to this Article X or any other Loan Document, Swap Agreement or Banking Services Agreement which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against the Borrower under this Article X, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, any Swap Agreement or any Banking Services Agreement, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by any Subsidiary of any obligation or Indebtedness.
(d) Without limiting the foregoing, the Borrower waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to the Borrower by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses the Borrower may have by reason of protection afforded to any Subsidiary with respect to any of the obligations of the Borrower under this Article X by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Secured Obligations. Without limiting the generality of the foregoing, the Borrower hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if the Borrower had not given this waiver, would otherwise limit the Borrower’s liability after a nonjudicial foreclosure sale to the difference between the obligations of the Borrower under this Article X and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if the Borrower had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if the Borrower had not given this waiver, among other things, would otherwise require the Secured Parties to exhaust all of their security before a personal judgment could be obtained for a deficiency).
(e) Likewise, the Borrower waives (i) any and all rights and defenses available to the Borrower under California Civil Code Sections 2899 and 3433 and (ii) any rights or defenses the Borrower may have with respect to its obligations as a guarantor by reason of any election of remedies by any Secured Party.
(f) The Borrower further waives all rights and defenses that the Borrower may have because any Subsidiary’s debt is secured by real property. This means, among other things, that:
(i) the Secured Parties may collect from the Borrower without first foreclosing on any real or personal property collateral pledged by the applicable Subsidiary; and
(ii) if any Secured Party forecloses on any real property collateral pledged by a Subsidiary:
(A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and
(B) the Secured Parties may collect from the Borrower even if the Secured Parties, by foreclosing on the real property collateral, have destroyed any rights the Borrower may have to collect from the Subsidiaries. This is an unconditional and irrevocable waiver of any rights and defenses the Borrower may have because any Subsidiary’s debt evidenced by the Loan Documents, any Swap Agreement or any Banking Services Agreement 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 California Code of Civil Procedure.
(g) Nothing herein shall be deemed to limit the right of any Secured Party to recover in accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any costs, expenses, liabilities or damages, including reasonable attorneys’ fees and costs, incurred by any Secured Party and arising from any covenant, obligation, liability, representation or warranty contained in any indemnity agreement given to any Secured Party, or any order, consent decree or settlement relating to the cleanup of Hazardous Materials or any other “environmental provision” (as defined in such Section 736) relating to any of the Collateral or any portion thereof or the right of the Secured Parties to waive, in accordance with the California Code of Civil Procedure Section 726.5 (as such Section may be amended from time to time), the security as to any parcel of any Collateral that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section 726.5), and as to any personal property attached to such parcel, and thereafter to exercise against the Borrower or any Subsidiary, to the extent permitted by such Section 726.5, the rights and remedies of any unsecured creditor, including reduction of the Secured Parties’ claim against the Borrower and its Subsidiaries to judgment, and any other rights and remedies permitted by law.
(h) The provisions of this Section 10.02 shall survive any satisfaction and discharge of the Borrower and the Subsidiary Guarantors by virtue of any payment, court order or any applicable law, except the payment in full in cash or cash collateralization pursuant to arrangements reasonably satisfactory to the Administrative Agent, as the case may be, and complete satisfaction of the Secured Obligations (other than Unliquidated Obligations) and the termination or expiration of the Commitments.
Appears in 2 contracts
Samples: Credit Agreement (Medivation, Inc.), Credit Agreement (Medivation, Inc.)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security AgreementArticle X, each Grantor the Borrower represents, warrants, covenants and agrees as follows:
8.20.1 (a) The obligations of such Grantor the Borrower under this Security Agreement Article X shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Contracts or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor The Borrower hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor the Borrower shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Contracts or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor The Borrower hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Grantorthe Borrower’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant SubsidiarySubsidiaries. Each Grantor The Borrower hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement Article X and agrees that such Grantorthe Borrower’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement Article X which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor The Borrower hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (b) In accordance with Section 2856 of the California Civil Code, each Grantor the Borrower hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Secured Obligations, has destroyed or otherwise impaired such Grantorthe Borrower’s rights of subrogation and reimbursement against the principalprincipal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Grantor The Borrower hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor the Borrower that its obligations under this Security Agreement Article X shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor the Borrower hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Secured Obligations until all of the Notes Secured Obligations (other than obligations expressly stated to survive such paymentUnliquidated Obligations) have been paid and satisfied in full in cashcash or cash collateralized in accordance with Section 2.06(j), as the case may be, and the Commitments have terminated or expired. The Borrower recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, the Secured Parties’ realization through nonjudicial foreclosure upon any real property constituting security for the Secured Obligations could terminate any right of the Secured Parties to recover a deficiency judgment against any Subsidiary, thereby terminating subrogation rights which other parties might otherwise might have against such Subsidiary. In connection with the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Article X against such parties. The Borrower’s obligations under hereby unconditionally and irrevocably waives any such defense.
(c) In addition to and without in any way limiting the foregoing, the Borrower hereby subordinates any and all Indebtedness of each Grantor Subsidiary now or hereafter owed to the Borrower to the prior payment in full in cash or cash collateralization in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, of all the Secured Obligations (other than Unliquidated Obligations) owed by the Borrower or any of its Subsidiaries to the Secured Parties and the termination or expiration of the Commitments and agrees with the Secured Parties that until all of the Secured Obligations (other than Unliquidated Obligations) have been paid and satisfied in full in cash or cash collateralized in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and the Commitments have terminated or expired, the Borrower shall not demand or accept any payment of principal or interest from any Subsidiary, claim any offset or other reduction of the Borrower’s obligations hereunder because of any such Indebtedness, nor take any action to obtain any of the collateral for the Secured Obligations, provided that, notwithstanding the foregoing, the Borrower may demand or accept payment from Subsidiaries on account of all such Indebtedness until the Borrower has received written notice from the Administrative Agent indicating the Administrative Agent’s election to suspend the Subsidiaries’ ability to make payments in accordance with this Section, which notice shall only be tendered by the Administrative Agent following the occurrence and during the continuance of an Event of Default. If any amount shall nevertheless be paid to the Borrower by any Subsidiary or another guarantor in violation of the foregoing provisions, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties. Without limiting the generality of the foregoing, the Borrower hereby waives, to the fullest extent permitted by law, diligence in collecting the Secured Obligations, presentment, demand for payment, protest, all notices with respect to this Article X or any other Loan Document, Swap Contract or Banking Services Agreement which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against the Borrower under this Article X, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, any Swap Contract or any Banking Services Agreement, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by any Subsidiary of any obligation or Indebtedness.
(d) Without limiting the foregoing, the Borrower waives all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to the Borrower by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses the Borrower may have by reason of protection afforded to any Subsidiary with respect to any of the obligations of the Borrower under this Article X by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Secured Obligations until all of the Secured Obligations (other than Unliquidated Obligations) have been paid and satisfied in full in cash or cash collateralized in accordance with Section 2.06(j), as the case may be, and the Commitments have terminated or expired. Without limiting the generality of the foregoing, the Borrower hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if the Borrower had not given this waiver, would otherwise limit the Borrower’s liability after a nonjudicial foreclosure sale to the difference between the obligations of the Borrower under this Article X and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if the Borrower had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if the Borrower had not given this waiver, among other things, would otherwise require the Secured Parties to exhaust all of their security before a personal judgment could be obtained for a deficiency). Notwithstanding any foreclosure of the lien of any or all of the Mortgages, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by any Secured Party’s acceptance of a deed in lieu of foreclosure, the Borrower shall remain bound under this Article X.
(e) Likewise, the Borrower waives (i) any and all rights and defenses available to the Borrower under California Civil Code Sections 2899 and 3433; (ii) any rights or defenses the Borrower may have with respect to its obligations as a guarantor by reason of any election of remedies by any Secured Party; and (iii) all rights and defenses that the Borrower may have because any Subsidiary’s debt is secured by real property. This means, among other things, that the Secured Parties may collect from the Borrower without first foreclosing on any real or personal property collateral pledged by the applicable Subsidiary, and that if any Secured Party forecloses on any real property collateral pledged by a Subsidiary (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) the Secured Parties may collect from the Borrower even if the Secured Parties, by foreclosing on the real property collateral, have destroyed any rights the Borrower may have to collect from the Subsidiaries. This is an unconditional and irrevocable waiver of any rights and defenses the Borrower may have because any Subsidiary’s debt evidenced by the Loan Documents, any Swap Contract or any Banking Services Agreement 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 California Code of Civil Procedure.
(f) Nothing herein shall be deemed to limit the right of any Secured Party to recover in accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any costs, expenses, liabilities or damages, including reasonable attorneys’ fees and costs, incurred by any Secured Party and arising from any covenant, obligation, liability, representation or warranty contained in any indemnity agreement given to any Secured Party, or any order, consent decree or settlement relating to the cleanup of Hazardous Materials or any other “environmental provision” (as defined in such Section 736) relating to any of the Collateral or any portion thereof or the right of the Secured Parties to waive, in accordance with the California Code of Civil Procedure Section 726.5 (as such Section may be amended from time to time), the security of any of the Mortgages as to any parcel of any Collateral that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section 726.5), and as to any personal property attached to such parcel, and thereafter to exercise against the Borrower or any Subsidiary, to the extent permitted by law such Section 726.5, the rights and remedies of any and all rights unsecured creditor, including reduction of subrogation the Secured Parties’ claim against the Issuer Borrower and its Subsidiaries to judgment, and any other rights and remedies permitted by law.
(g) The provisions of this Section 10.13 shall survive any satisfaction and discharge of the Borrower and the Subsidiary Guarantors by virtue of any payment, court order or any Subsidiaryapplicable law, except the full payment in cash or the cash collateralization in accordance with Section 2.06(j), as the case may be, and each Grantor hereby waives to complete satisfaction of the extent permitted by law any rights to enforce any remedy which any Secured Party may have against Obligations (other than Unliquidated Obligations) and the Issuer termination or any Subsidiary and any right to participate in any collateral for expiration of the Notes ObligationsCommitments.
Appears in 1 contract
Samples: Credit Agreement (Newport Corp)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security AgreementGuaranty, each Grantor Guarantor represents, warrants, covenants and agrees as follows:
8.20.1 (A) The obligations of such Grantor Guarantor under this Security Agreement Guaranty shall be performed without demand by any Secured Party or the Administrative Agent and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Contracts or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor Guarantor shall be liable even if the Issuer or the relevant Subsidiary Borrower had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Contracts or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such GrantorGuarantor’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant SubsidiaryBorrower. Each Grantor Guarantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement Guaranty and agrees that such GrantorGuarantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement Guaranty which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (B) In accordance with Section 2856 of the California Civil Code, each Grantor Guarantor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any the Secured Party Parties and/or the Administrative Agent even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Secured Obligations, has destroyed or otherwise impaired such GrantorGuarantor’s rights of subrogation and reimbursement against the principalprincipal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Grantor Guarantor hereby authorizes and empowers the Secured Parties and the Administrative Agent to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor Guarantor that its obligations under this Security Agreement Guaranty shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor Guarantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any SubsidiaryBorrower, any constituent of the Issuer or any SubsidiaryBorrower, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Secured Obligations until all of the Notes Secured Obligations (other than obligations expressly stated to survive such paymentUnliquidated Obligations) have been paid and satisfied in full in cashcash or cash collateralized in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and the Commitments have terminated or expired. Each Guarantor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, the Secured Parties’ realization through nonjudicial foreclosure upon any real property constituting security for the Secured Obligations could terminate any right of the Secured Parties to recover a deficiency judgment against the Borrower, thereby terminating subrogation rights which other parties might otherwise might have against the Borrower. In connection with the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Guaranty against such parties. Each Guarantor hereby unconditionally and irrevocably waives any such defense.
(C) In addition to and without in any way limiting the foregoing, each Grantor Guarantor hereby subordinates any and all Indebtedness of the Borrower now or hereafter owed to such Guarantor to the prior payment in full in cash or the cash collateralization in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, of all the Secured Obligations (other than Unliquidated Obligations) owed by the Borrower or any of its Subsidiaries to the Secured Parties and the termination or expiration of the Commitments and agrees with the Secured Parties that until all of the Secured Obligations(other than Unliquidated Obligations) have been paid and satisfied in full in cash or cash collateralized in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and the Commitments have terminated or expired, each Guarantor shall not demand or accept any payment of principal or interest from the Borrower, claim any offset or other reduction of such Guarantor’s obligations hereunder because of any such Indebtedness, nor take any action to obtain any of the collateral for the Secured Obligations, provided that, notwithstanding the foregoing, the Guarantors may make payments on account of all such Indebtedness until the Guarantors have received written notice from the Administrative Agent indicating the Administrative Agent’s election to suspend the Guarantors’ ability to make payments in accordance with this Section, which notice shall only be tendered by the Administrative Agent following the occurrence and during the continuance of an Event of Default . If any amount shall nevertheless be paid to any Guarantor by the Borrower or another guarantor in violation of the foregoing provisions, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties or the Administrative Agent.
(D) Without limiting the foregoing, each Guarantor waives all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Guarantor may have by reason of protection afforded to the Borrower with respect to any of the obligations of such Guarantor under this Guaranty by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Secured Obligations until all of the Secured Obligations (other than Unliquidated Obligations) have been paid and satisfied in full in cash or cash collateralized in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and the Commitments have terminated or expired. Without limiting the generality of the foregoing, each Guarantor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Guarantor had not given this waiver, would otherwise limit such Guarantor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Guarantor under this Guaranty and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Guarantor had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Guarantor had not given this waiver, among other things, would otherwise require the Secured Parties to exhaust all of their security before a personal judgment could be obtained for a deficiency). Notwithstanding any foreclosure of the lien of any or all of the Mortgages, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by the Secured Parties’ or the Administrative Agent’s acceptance of a deed in lieu of foreclosure, Guarantors shall remain bound under this Guaranty.
(E) Likewise, each Guarantor waives (i) any and all rights and defenses available to such Guarantor under California Civil Code Sections 2899 and 3433; (ii) any rights or defenses such Guarantor may have with respect to its obligations as a guarantor by reason of any election of remedies by the Secured Parties and/or the Administrative Agent; and (iii) all rights and defenses that such Guarantor may have because the Borrower’s debt is secured by real property. This means, among other things, that the Secured Parties or the Administrative Agent may collect from Guarantors without first foreclosing on any real or personal property collateral pledged by the Borrower, and that if the Secured Parties or the Administrative Agent forecloses on any real property collateral pledged by the Borrower (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) any Secured Party or the Administrative Agent may collect from Guarantors even if the Secured Parties or the Administrative Agent, by foreclosing on the real property collateral, has destroyed any rights Guarantors may have to collect from the Borrower. This is an unconditional and irrevocable waiver of any rights and defenses Guarantors may have because the Borrower’s debt evidenced by the Loan Documents, any Swap Contract or any Banking Services Agreement 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 California Code of Civil Procedure.
(F) Nothing herein shall be deemed to limit the right of the Secured Parties or the Administrative Agent to recover in accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any costs, expenses, liabilities or damages, including reasonable attorneys’ fees and costs, incurred by the Secured Parties and/or the Administrative Agent and arising from any covenant, obligation, liability, representation or warranty contained in any indemnity agreement given to the Secured Parties and/or the Administrative Agent, or any order, consent decree or settlement relating to the cleanup of Hazardous Materials or any other “environmental provision” (as defined in such Section 736) relating to any of the Collateral or any portion thereof or the right of the Secured Parties or the Administrative Agent to waive, in accordance with the California Code of Civil Procedure Section 726.5 (as such Section may be amended from time to time), the security of any of the Mortgages as to any parcel of any Collateral that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section 726.5), and as to any personal property attached to such parcel, and thereafter to exercise against the Borrower, to the extent permitted by law such Section 726.5, the rights and remedies of any and all rights unsecured creditor, including reduction of subrogation the Secured Parties’ claim against the Issuer Borrower to judgment, and any other rights and remedies permitted by law.
(G) The provisions of this Section 26 shall survive any satisfaction and discharge of the Borrower and the Subsidiary Guarantors by virtue of any payment, court order or any Subsidiaryapplicable law, except the full payment in cash or the cash collateralization in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and each Grantor hereby waives to complete satisfaction of the extent permitted by law any rights to enforce any remedy which any Secured Party may have against Obligations (other than Unliquidated Obligations) and the Issuer termination or any Subsidiary and any right to participate in any collateral for expiration of the Notes ObligationsCommitments.
Appears in 1 contract
Samples: Guaranty (Newport Corp)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security AgreementArticle X, each Grantor the Borrower represents, warrants, covenants and agrees as follows:
8.20.1 (a) The obligations of such Grantor the Borrower under this Security Agreement Article X shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Agreements or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor The Borrower hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor the Borrower shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Agreements or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor The Borrower hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Grantorthe Borrower’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant SubsidiarySubsidiaries. Each Grantor The Borrower hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement Article X and agrees that such Grantorthe Borrower’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement Article X which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor The Borrower hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (b) In accordance with Section 2856 of the California Civil Code, each Grantor the Borrower hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Secured Obligations, has destroyed or otherwise impaired such Grantorthe Borrower’s rights of subrogation and reimbursement against the principalprincipal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Grantor The Borrower hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor the Borrower that its obligations under this Security Agreement Article X shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor the Borrower hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Secured Obligations until (i) all of the Notes Secured Obligations (other than obligations expressly stated to survive such payment) have been indefeasibly paid and satisfied in full in cashcash and the Commitments have terminated or expired, (ii) all obligations owed to the Secured Parties under the Loan Documents, the Swap Agreements and the Banking Services Agreements have been fully performed, (iii) the Secured Parties have released, transferred or disposed of all their right, title and interest in such collateral or any other security for the Secured Obligations and (iv) there has expired the maximum possible period thereafter during which any payment made by the Borrower, any Subsidiary Guarantor or others to any Secured Party with respect to the Secured Obligations or any other obligations owed to the Secured Parties under the Loan Documents, the Swap Agreements and the Banking Services Agreements could be deemed a preference under the Bankruptcy Code of the United States. In connection with the foregoing, each Grantor the Borrower expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer or any Subsidiary, and each Grantor the Borrower hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Secured Obligations. The Borrower recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, the Secured Parties’ realization through nonjudicial foreclosure upon any real property constituting security for the Secured Obligations could terminate any right of the Secured Parties to recover a deficiency judgment against any Subsidiary, thereby terminating subrogation rights which other parties might otherwise might have against such Subsidiary. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Article X against such parties. The Borrower’s hereby unconditionally and irrevocably waives any such defense.
(c) In addition to and without in any way limiting the foregoing, the Borrower hereby subordinates any and all Indebtedness of each Subsidiary now or hereafter owed to the Borrower to the prior indefeasible payment in full in cash of all the Secured Obligations owed by the Borrower or any of its Subsidiaries to the Secured Parties and the termination or expiration of the Commitments and agrees with the Secured Parties that until (i) all of the Secured Obligations have been indefeasibly paid and satisfied in full in cash and the Commitments have terminated or expired, (ii) all obligations owed to the Secured Parties under the Loan Documents, the Swap Agreements and the Banking Services Agreements have been fully performed, (iii) the Secured Parties have released, transferred or disposed of all their right title and interest in such collateral or any other security for the Secured Obligations and (iv) there has expired the maximum possible period thereafter during which any payment made by the Borrower, any Subsidiary or others to the Secured Parties with respect to the Secured Obligations or any other obligations owed to the Secured Parties under the Loan Documents, the Swap Agreements or the Banking Services Agreements could be deemed a preference under the Bankruptcy Code of the United States, the Borrower shall not demand or accept any payment of principal or interest from any Subsidiary, claim any offset or other reduction of the Borrower’s obligations hereunder because of any such Indebtedness, nor take any action to obtain any of the collateral for the Secured Obligations. If any amount shall nevertheless be paid to the Borrower by any Subsidiary or another guarantor, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties. Further, the Borrower shall have no right of recourse against the Secured Parties by reason of any action any Secured Party may take or omit to take under the provisions of this Article X or under the provisions of any of the Loan Documents, Swap Agreements or Banking Services Agreements. Without limiting the generality of the foregoing, the Borrower hereby waives, to the fullest extent permitted by law, diligence in collecting the Secured Obligations, presentment, demand for payment, protest, all notices with respect to this Article X or any other Loan Document, Swap Agreement or Banking Services Agreement which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against the Borrower under this Article X, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, any Swap Agreement or any Banking Services Agreement, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by any Subsidiary of any obligation or Indebtedness.
(d) Without limiting the foregoing, the Borrower waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to the Borrower by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses the Borrower may have by reason of protection afforded to any Subsidiary with respect to any of the obligations of the Borrower under this Article X by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Secured Obligations. Without limiting the generality of the foregoing, the Borrower hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if the Borrower had not given this waiver, would otherwise limit the Borrower’s liability after a nonjudicial foreclosure sale to the difference between the obligations of the Borrower under this Article X and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if the Borrower had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if the Borrower had not given this waiver, among other things, would otherwise require the Secured Parties to exhaust all of their security before a personal judgment could be obtained for a deficiency).
(e) Likewise, the Borrower waives (i) any and all rights and defenses available to the Borrower under California Civil Code Sections 2899 and 3433 and (ii) any rights or defenses it may have with respect to its obligations as a guarantor by reason of any election of remedies by any Secured Party.
(f) The Borrower further waives all rights and defenses that it may have because any Subsidiary’s debt is secured by real property. This means, among other things, that:
(i) The Secured Parties may collect from the Borrower without first foreclosing on any real or personal property collateral pledged by the applicable Subsidiary.
(ii) If any Secured Party forecloses on any real property collateral pledged by a Subsidiary:
(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 Secured Parties may collect from the Borrower even if the Secured Parties, by foreclosing on the real property collateral, have destroyed any rights the Borrower may have to collect from the Subsidiaries. This is an unconditional and irrevocable waiver of any rights and defenses the Borrower may have because any Subsidiary’s debt evidenced by the Loan Documents, any Swap Agreement or any Banking Services Agreement 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 California Code of Civil Procedure.
(g) Nothing herein shall be deemed to limit the right of any Secured Party to recover in accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any costs, expenses, liabilities or damages, including reasonable attorneys’ fees and costs, incurred by any Secured Party and arising from any covenant, obligation, liability, representation or warranty contained in any indemnity agreement given to any Secured Party, or any order, consent decree or settlement relating to the cleanup of Hazardous Materials or any other “environmental provision” (as defined in such Section 736) relating to any of the Collateral or any portion thereof or the right of the Secured Parties to waive, in accordance with the California Code of Civil Procedure Section 726.5 (as such Section may be amended from time to time), the security as to any parcel of any Collateral that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section 726.5), and as to any personal property attached to such parcel, and thereafter to exercise against the Borrower or any Subsidiary, to the extent permitted by such Section 726.5, the rights and remedies of any unsecured creditor, including reduction of the Secured Parties’ claim against the Borrower and its Subsidiaries to judgment, and any other rights and remedies permitted by law.
(h) The provisions of this Section 10.02 shall survive any satisfaction and discharge of the Borrower and the Subsidiary Guarantors by virtue of any payment, court order or any applicable law, except the payment in full in cash and complete satisfaction of the Secured Obligations and the termination or expiration of the Commitments.
Appears in 1 contract
Samples: Credit Agreement (Superior Industries International Inc)
California Waivers. (i) To the extent applicable, each Borrower hereby expressly (A) waives any right it may have under California law appliesCivil Code § 2954.10 to prepay any Loan in whole or in part, without penalty, upon acceleration of the Maturity Date; provided, however, such waiver shall not require any Borrower to pay any amounts not required under this Agreement; and (B) agrees that if a prepayment of any or all of any Loan is made, the applicable Borrower shall be obligated to pay, concurrently therewith, any Fees applicable thereto. By initialing this provision in the space provided below, the Loan Parties hereby declare that the Lenders’ agreement to make the subject Loan at the interest rate and for the term set forth herein constitutes adequate consideration, given individual weight by the undersigned, for this waiver and agreement.
(ii) To the extent applicable, nothing herein shall be deemed to limit the right of the Lenders to recover, in addition accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any costs, expenses, liabilities or damages, including attorneys’ fees and not in lieu costs, incurred by the Lenders and/or the Administrative Agent and arising from the breach of any other covenant, obligation, liability, representation or warranty contained in any environmental indemnity agreement given to the Administrative Agent and/or the Lenders in connection with the Loans (including, without limitation, the environmental indemnity provisions of this Security Agreementthe Environmental Indemnity), each Grantor representsor any order, warrantsconsent decree or settlement relating to the cleanup of Hazardous Substances or any other “environmental provision” (as defined in such Section 736) relating to any Financed Property or any portion thereof or the right of Secured Parties to waive, covenants and agrees in accordance with California Code of Civil Procedure Section 726.5 (as follows:
8.20.1 The obligations of such Grantor under this Security Agreement shall Section may be performed without demand by any Secured Party and shall be unconditional irrespective of amended from time to time), the genuineness, validity, regularity or enforceability security of any of the Notes DocumentsMortgage as to any Financed Property that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section 726.5), and without regard as to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives personal property attached to such parcel, and thereafter to exercise against any Borrower, to the extent permitted by law such Section 726.5, the rights and remedies of any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time unsecured creditor, including reduction of execution any of the applicable Notes Documents or thereafter ceases Secured Parties’ claims against any Borrower to be liable. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Grantor’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant Subsidiary. Each Grantor hereby waives to the extent permitted by law the benefit of all principles or provisions of lawjudgment, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement and agrees that such Grantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 In accordance with Section 2856 of the California Civil Code, each Grantor hereby waives to the extent remedies permitted by law all rights law. BORROWER REPRESENTATIVE’S INITIALS AS TO SUBCLAUSES (i) and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, has destroyed or otherwise impaired such Grantor’s rights of subrogation and reimbursement against the principal. Each Grantor hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor that its obligations under this Security Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Obligations until all of the Notes Obligations (other than obligations expressly stated to survive such paymentii) have been paid and satisfied in full in cash. In connection with the foregoing, each Grantor expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer or any Subsidiary, and each Grantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Obligations.ABOVE: ___________
Appears in 1 contract
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security Agreement, each Grantor represents, warrants, covenants and agrees as follows:
8.20.1 The obligations of such Grantor under this Security Agreement shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 (a) Guarantor understands and agrees that by doing so such Grantor shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time waivers contained in this Section 6.04 are waivers of execution of the applicable Notes Documents or thereafter ceases to be liable. Each Grantor hereby waives to the extent permitted by law any and all benefits substantive rights and defenses to which Guarantor might otherwise be entitled under state and federal law. The rights and defenses waived include, without limitation, those provided by California Civil Code Section 2809 laws of suretyship and agrees guaranty, antideficiency laws, and the Uniform Commercial Code. Guarantor acknowledges that Guarantor has provided these waivers of rights and defenses with the intention that they be fully relied upon by doing so such Grantor’s liability may be larger in amount and more burdensome than that of the Issuer Administrative Agent and/or the relevant Subsidiary. Each Grantor hereby Lenders.
(b) Guarantor waives to the extent permitted by law the benefit Guarantor’s rights of all principles or provisions of lawsubrogation, statutory or otherwisereimbursement, which are or might be in conflict with the terms of this Security Agreement indemnity and agrees that such Grantor’s obligations shall not be affected by any circumstancescontribution, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights and defenses available to Guarantor by reason of sureties and guarantors thereunder.
8.20.2 In accordance with Section 2856 Sections 2787 to 2855, inclusive, of the California Civil Code, each Grantor hereby waives as amended or recodified from time to time, including without limitation (i) any defenses Guarantor may have to the Guaranteed Obligations by reason of an election of remedies by the Administrative Agent and/or the Lenders, and (ii) any rights or defenses Guarantor may have by reason of protection afforded to Borrower with respect to the Guaranteed Obligations pursuant to the antideficiency or other laws of the State of California limiting or discharging Borrower’s indebtedness, including, without limitation, Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure, as amended or recodified from time to time.
(c) If and to the extent permitted such waivers of Guarantor’s rights of subrogation, reimbursement, indemnity and contribution, and any other rights and defenses waived by law Guarantor hereunder are unenforceable, Guarantor hereby agrees that all such rights shall be junior and subordinate to the rights of the Administrative Agent and/or the Lenders to obtain payment and performance of the Guaranteed Obligations and to all rights of the Administrative Agent and/or the Lenders in and to any property, including the Property, which now or hereafter serves or could serve as collateral security for the Guaranteed Obligations.
(d) The above waivers include, but are not limited to, the waiver by Guarantor of:
(i) all rights and defenses arising out of an election of remedies by any Secured Party the Administrative Agent and/or the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, remedies has destroyed or otherwise impaired such GrantorGuarantor’s rights of subrogation and and/or reimbursement against Borrower by the principal. Each Grantor hereby authorizes operation of Section 580d of the California Code of Civil Procedure or otherwise;
(ii) all rights and empowers protections of any kind which Guarantor may have for any reason which would affect or limit the Secured Parties amount of any recovery by the Administrative Agent and/or the Lenders from Guarantor including, without limitation, the right to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is fair market value hearing pursuant to Section 580a of the intent and purpose California Code of such Grantor that its obligations under this Security Agreement shall be absolute, independent and unconditional under Civil Procedure.
(iii) any and all circumstances. Specifically, benefits available to sureties and without in any way limiting the foregoing, each Grantor hereby waives creditors which might otherwise be available to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising Guarantor under Sections 2846, 2847, 2848 and 2849 of the California Civil Code Sections 2809 (reduction of surety’s obligation where larger than principal’s), 2810 (liability of surety when principal is not liable), 2815 (revocation of continuing guaranty), 2819 (exoneration of surety), 2839 (performance of principal obligation or offer of performance), 2845 (requiring creditor to proceed against principal), 2849 (security for performance of principal obligation), 2850 (hypothecation of surety’s property), 2899 (order of resort to property), and 3433 (creditor’s entitlement to satisfy claim from several funds), as amended or recodified from time to time; and
(e) Guarantor shall not be discharged, released or exonerated, in any other right way, from its absolute, unconditional and independent liabilities hereunder, even though any rights or defenses which Guarantor may have against Borrower, the Administrative Agent, the Lenders or others may be destroyed, diminished or otherwise affected, by:
(i) Any declaration by the Administrative Agent and/or the Lenders of recourse to or with a default in respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing Guaranteed Obligations;
(ii) The exercise by the Administrative Agent and/or the Lenders of any rights or to remedies against Borrower or any collateral for the Notes Obligations until all other person;
(iii) The failure of the Notes Obligations (other than obligations expressly stated Administrative Agent and/or the Lenders to survive such payment) have been paid and satisfied in full in cash. In connection with the foregoing, each Grantor expressly waives to the extent permitted by law exercise any and all rights of subrogation or remedies against the Issuer Borrower or any Subsidiary, and each Grantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Obligations.other person; or
Appears in 1 contract
Samples: Guaranty and Contribution Agreement (Interstate Hotels & Resorts Inc)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security Agreement, each Grantor Obligor represents, warrants, covenants and agrees as follows:
8.20.1 (a) The obligations of such Grantor Obligor under this Security Agreement shall be performed without demand by any Secured Party or the Administrative Agent and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Contracts or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Obligor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor Obligor shall be liable even if the Issuer or the relevant Subsidiary Borrower had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Contracts or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor Obligor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such GrantorObligor’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant SubsidiaryBorrower. Each Grantor Obligor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement and agrees that such GrantorObligor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Obligor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (b) In accordance with Section 2856 of the California Civil Code, each Grantor Obligor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any the Secured Party Parties and/or the Administrative Agent even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Secured Obligations, has destroyed or otherwise impaired such GrantorObligor’s rights of subrogation and reimbursement against the principalprincipal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Grantor Obligor hereby authorizes and empowers the Secured Parties and the Administrative Agent to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor Obligor that its obligations under this Security Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor Obligor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any SubsidiaryBorrower, any constituent of the Issuer or any SubsidiaryBorrower, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Secured Obligations until all of the Notes Secured Obligations (other than obligations expressly stated to survive such paymentUnliquidated Obligations) have been paid and satisfied in full in cashcash or cash collateralized in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and the Commitments have terminated or expired. Each Obligor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, the Secured Parties’ realization through nonjudicial foreclosure upon any real property constituting security for the Secured Obligations could terminate any right of the Secured Parties to recover a deficiency judgment against the Borrower, thereby terminating subrogation rights which other parties might otherwise might have against the Borrower. In connection with the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Agreement against such parties. Each Obligor hereby unconditionally and irrevocably waives any such defense.
(c) In addition to and without in any way limiting the foregoing, each Grantor Obligor hereby subordinates any and all Indebtedness of the Borrower now or hereafter owed to such Obligor to the prior payment in full in cash or cash collateralization in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, of all the Secured Obligations (other than Unliquidated Obligations) owed by the Borrower or any of its Subsidiaries to the Secured Parties and the termination or expiration of the Commitments and agrees with the Secured Parties that until all of the Secured Obligations (other than Unliquidated Obligations) have been paid and satisfied in full in cash or cash collateralized in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and the Commitments have terminated or expired, each Obligor shall not demand or accept any payment of principal or interest from the Borrower, claim any offset or other reduction of such Obligor’s obligations hereunder because of any such Indebtedness, nor take any action to obtain any of the collateral for the Secured Obligations, provided that, notwithstanding the foregoing, the Obligors may make payments on account of all such Indebtedness until the Obligors have received written notice from the Administrative Agent indicating the Administrative Agent’s election to suspend the Obligors’ ability to make payments in accordance with this Section, which notice shall only be tendered by the Administrative Agent following the occurrence and during the continuance of an Event of Default . If any amount shall nevertheless be paid to any Obligor by the Borrower or another guarantor in violation of the foregoing provisions, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties or the Administrative Agent. Without limiting the generality of the foregoing, each Obligor hereby waives, to the fullest extent permitted by law, diligence in collecting the Secured Obligations, presentment, demand for payment, protest, all notices with respect to this Agreement, or any other Loan Document, Swap Contract or Banking Services Agreement which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against such Obligor under this Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, any Swap Contract or any Banking Services Agreement, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Borrower of any obligation or Indebtedness.
(d) Without limiting the foregoing, each Obligor waives all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Obligor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Obligor may have by reason of protection afforded to the Borrower with respect to any of the obligations of such Obligor under this Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Secured Obligations until all of the Secured Obligations (other than Unliquidated Obligations) have been paid and satisfied in full in cash or cash collateralized in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and the Commitments have terminated or expired. Without limiting the generality of the foregoing, each Obligor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Obligor had not given this waiver, would otherwise limit such Obligor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Obligor under this Agreement and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Obligor had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Obligor had not given this waiver, among other things, would otherwise require the Secured Parties to exhaust all of their security before a personal judgment could be obtained for a deficiency). Notwithstanding any foreclosure of the lien of any or all of the Mortgages, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by the Secured Parties’ or the Administrative Agent’s acceptance of a deed in lieu of foreclosure, Obligors shall remain bound under this Agreement.
(e) Likewise, each Obligor waives (i) any and all rights and defenses available to such Obligor under California Civil Code Sections 2899 and 3433; (ii) any rights or defenses such Obligor may have with respect to its obligations as a guarantor by reason of any election of remedies by the Secured Parties and/or the Administrative Agent; and (iii) all rights and defenses that such Obligor may have because the Borrower’s debt is secured by real property. This means, among other things, that the Secured Parties or the Administrative Agent may collect from Obligors without first foreclosing on any real or personal property collateral pledged by the Borrower, and that if the Secured Parties or the Administrative Agent forecloses on any real property collateral pledged by the Borrower (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) any Secured Party or the Administrative Agent may collect from Obligors even if the Secured Parties or the Administrative Agent, by foreclosing on the real property collateral, has destroyed any rights Obligors may have to collect from the Borrower. This is an unconditional and irrevocable waiver of any rights and defenses Obligors may have because the Borrower’s debt evidenced by the Loan Documents, any Swap Contract or any Banking Services Agreement 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 California Code of Civil Procedure.
(f) Nothing herein shall be deemed to limit the right of the Secured Parties or the Administrative Agent to recover in accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any costs, expenses, liabilities or damages, including reasonable attorneys’ fees and costs, incurred by the Secured Parties and/or the Administrative Agent and arising from any covenant, obligation, liability, representation or warranty contained in any indemnity agreement given to the Secured Parties and/or the Administrative Agent, or any order, consent decree or settlement relating to the cleanup of Hazardous Materials or any other “environmental provision” (as defined in such Section 736) relating to any of the Collateral or any portion thereof or the right of the Secured Parties or the Administrative Agent to waive, in accordance with the California Code of Civil Procedure Section 726.5 (as such Section may be amended from time to time), the security of any of the Mortgages as to any parcel of any Collateral that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section 726.5), and as to any personal property attached to such parcel, and thereafter to exercise against the Borrower, to the extent permitted by law such Section 726.5, the rights and remedies of any and all rights unsecured creditor, including reduction of subrogation the Secured Parties’ claim against the Issuer Borrower to judgment, and any other rights and remedies permitted by law.
(g) The provisions of this Section 23 shall survive any satisfaction and discharge of the Borrower and the Subsidiary Guarantors by virtue of any payment, court order or any Subsidiaryapplicable law, except the full payment in cash or the cash collateralization in accordance with Section 2.06(j) of the Credit Agreement, as the case may be, and each Grantor complete satisfaction of the Secured Obligations (other than Unliquidated Obligations) and the termination or expiration of the Commitments. Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written. OBLIGORS: NEWPORT CORPORATION, a Nevada corporation By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Senior Vice President, Chief Financial Officer and Treasurer OPHIR HOLDINGS, INC., a Massachusetts corporation By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Vice President and Secretary OPHIR OPTICS, LLC, a Massachusetts limited liability company By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Vice President and Secretary OPHIR-SPIRICON, LLC, a Utah limited liability company By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Secretary Accepted and agreed to as of the date first above written. JPMORGAN CHASE BANK, N.A., as Administrative Agent By: /s/ Ling Li Name: Ling Li Title: Vice President Obligor: Newport Corporation Newport Domestic International Sales Corporation California 2,500 shares of common stock 2,500 shares of common stock 100 % 2 Newport Government Systems, Inc. California 100 shares of common stock 100 shares of common stock 100 % 2 Newport European Distribution Company (Foreign Holding Company) California 2,000,000 shares of common stock; 1,300,000 shares of common stock; 65 % 3; Micro Controle Spectra-Physics S.A.S. France 62,665 shares 40,733 shares 65 % Uncertificated Newport Corporation (Barbados) SRL Barbados 99 common quotas 64 common quotas 65 % 1** Newport Instruments Canada Corporation Canada 1 common share 0.65 common share 65 % 1** Newport Ophir Holdings Ltd. Israel 100 100 100 % OS-1 Newport Opto-Electronics Technologies (Singapore) Pte. Ltd. Singapore 1,052,788 ordinary shares 684,313 ordinary shares 65 % 6 Newport Opto-Electronics Technologies (Wuxi) Company Limited China USD 6,000,000 registered capital USD 3,900,000 registered capital 65 % Uncertificated Newport Spectra-Physics BV Netherlands 400 registered shares 260 registered shares 65 % Uncertificated Newport Spectra-Physics Ltd. United Kingdom 806,914 shares 524,495 shares 65 % 12 Spectra-Physics K.K. Japan 80,000 shares 52,000 shares 65 % B-002 Newport Laser Holding GmbH Austria Euro 35,000 share capital Euro 22,750 share capital 65 % Uncertificated **Certificate for full number of shares owned being delivered with stock power for pledged portion of shares. Obligor: Ophir Holdings, Inc. Ophir Optics, LLC Massachusetts 300 membership units 300 membership units 100 % Uncertificated Ophir-Spiricon, LLC Utah 9,660 membership units 9,660 membership units 100 % Uncertificated All claims of Newport Corporation under that certain case entitled Newport Corporation v. Lighthouse Photonics Incorporated, Case No. SACV12-0719 DOC (JPRx), pending in the U.S. District Court for the Central District of California, Southern Division. Newport has filed a complaint in such court, alleging that Lighthouse Photonics Incorporated has infringed and continues to infringe on Newport’ U.S. Patent Nos. 5,446,749, 6,241,720 and 6,287,298 by making, using, offering for sale and selling its Sprout laser systems. None. FOR VALUE RECEIVED, the undersigned hereby waives sells, assigns and transfers to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Obligations.following Equity Interests of , a corporation:
Appears in 1 contract
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security AgreementGuaranty, each Grantor Guarantor represents, warrants, covenants and agrees as follows:
8.20.1 (a) The obligations of such Grantor Guarantor under this Security Agreement Guaranty shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor Guarantor shall be liable even if the Issuer Borrower or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, or thereafter ceases to be liable. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such GrantorGuarantor’s liability may be larger in amount and more burdensome than that of the Issuer Borrower and/or the relevant Subsidiary. Each Grantor Guarantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement Guaranty and agrees that such GrantorGuarantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement Guaranty which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (b) In accordance with Section 2856 of the California Civil Code, each Grantor Guarantor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, has destroyed or otherwise impaired such GrantorGuarantor’s rights of subrogation and reimbursement against the principal. Each Grantor Guarantor hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor Guarantor that its obligations under this Security Agreement Guaranty shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor Guarantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer Borrower or any Subsidiary, any constituent of the Issuer Borrower or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Obligations until all of the Notes Obligations (other than obligations expressly stated to survive such paymentpayment or termination) have been paid and satisfied in full in cashcash and the Commitments have terminated or expired (or otherwise become subject to cash collateralization or other arrangements reasonably satisfactory to the Administrative Agent). In connection with the foregoing, each Grantor Guarantor expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer Borrower or any Subsidiary, and each Grantor Guarantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer Borrower or any Subsidiary and any right to participate in any collateral for the Notes Obligations.
(c) Without limiting the generality of the foregoing, each Guarantor hereby waives, to the fullest extent permitted by law, diligence in collecting the Obligations, presentment, demand for payment, protest, all notices with respect to this Guaranty, or any other Loan Document which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against such Guarantor under this Guaranty, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Borrower or any Subsidiary of any obligation or Indebtedness.
(d) Without limiting the foregoing, each Guarantor waives to the extent permitted by law all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Guarantor may have by reason of protection afforded to the Borrower or any Subsidiary with respect to any of the obligations of such Guarantor under this Guaranty by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Obligations. Without limiting the generality of the foregoing, each Guarantor hereby expressly waives to the extent permitted by law any and all benefits under California Code of Civil Procedure Sections 580(b) (which Section, if such Guarantor had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations).
(e) Likewise, each Guarantor waives to the extent permitted by law (i) any and all rights and defenses available to such Guarantor under California Civil Code Sections 2899 and 3433 and (ii) any rights or defenses such Guarantor may have with respect to its obligations as a guarantor by reason of any election of remedies by any Secured Party.
Appears in 1 contract
Samples: Guaranty (Microchip Technology Inc)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security Agreement, each Grantor represents, warrants, covenants and agrees as follows:
8.20.1 8.21.1 The obligations of such Grantor under this Security Agreement shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor shall be liable even if the Issuer Borrower or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, or thereafter ceases to be liable. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such Grantor’s liability may be larger in amount and more burdensome than that of the Issuer Borrower and/or the relevant Subsidiary. Each Grantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement and agrees that such Grantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 8.21.2 In accordance with Section 2856 of the California Civil Code, each Grantor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, has destroyed or otherwise impaired such Grantor’s rights of subrogation and reimbursement against the principal. Each Grantor hereby authorizes and empowers the Secured Parties to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor that its obligations under this Security Agreement shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer Borrower or any Subsidiary, any constituent of the Issuer Borrower or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Obligations until all of the Notes Obligations (other than obligations expressly stated to survive such paymentpayment or termination) have been paid and satisfied in full in cashcash and the Commitments have terminated or expired. In connection with the foregoing, each Grantor expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer Borrower or any Subsidiary, and each Grantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer Borrower or any Subsidiary and any right to participate in any collateral for the Notes Obligations.
8.21.3 Without limiting the generality of the foregoing, each Grantor hereby waives, to the fullest extent permitted by law, diligence in collecting the Obligations, presentment, demand for payment, protest, all notices with respect to this Security Agreement, or any other Loan Document which may be required by statute, rule of law or otherwise to preserve the Secured Parties’ rights against such Grantor under this Security Agreement, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by the Borrower or any Subsidiary of any obligation or Indebtedness.
8.21.4 Without limiting the foregoing, each Grantor waives to the extent permitted by law all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Grantor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Grantor may have by reason of protection afforded to the Borrower or any Subsidiary with respect to any of the obligations of such Grantor under this Security Agreement by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Obligations. Without limiting the generality of the foregoing, each Grantor hereby expressly waives to the extent permitted by law any and all benefits under California Code of Civil Procedure Sections 580b(b) (which Section, if such Grantor had not given this waiver, would otherwise limit the Secured Parties’ right to recover a deficiency judgment with respect to purchase money obligations).
8.21.5 Likewise, each Grantor waives to the extent permitted by law (i) any and all rights and defenses available to such Grantor under California Civil Code Sections 2899 and 3433 and (ii) any rights or defenses such Grantor may have with respect to its obligations as a guarantor by reason of any election of remedies by any Secured Party.
Appears in 1 contract
Samples: Pledge and Security Agreement (Microchip Technology Inc)
California Waivers. To the extent California law applies, in addition to and not in lieu of any other provisions of this Security Agreement, each Grantor represents, warrants, covenants and agrees as follows:
8.20.1 The obligations of such Grantor under this Security Agreement shall be performed without demand by any Secured Party and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Documents, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 (a) Guarantor understands and agrees that by doing so such Grantor shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time waivers contained in this Section 6.04 are waivers of execution of the applicable Notes Documents or thereafter ceases to be liable. Each Grantor hereby waives to the extent permitted by law any and all benefits substantive rights and defenses to which Guarantor might otherwise be entitled under state and federal law. The rights and defenses waived include, without limitation, those provided by California Civil Code Section 2809 laws of suretyship and agrees guaranty, antideficiency laws, and the Uniform Commercial Code. Guarantor acknowledges that by doing so such Grantor’s liability may be larger in amount Guarantor has provided these waivers of rights and more burdensome than that of the Issuer and/or the relevant Subsidiary. Each Grantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict defenses with the terms intention that they be fully relied upon by the Lender.
(b) Guarantor waives Guarantor's rights of this Security Agreement subrogation, reimbursement, indemnity and agrees that such Grantor’s obligations shall not be affected by any circumstancescontribution, whether or not referred to in this Security Agreement which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights and defenses available to Guarantor by reason of sureties and guarantors thereunder.
8.20.2 In accordance with Section 2856 Sections 2787 to 2855, inclusive, of the California Civil Code, each Grantor hereby waives as amended or recodified from time to time, including without limitation (i) any defenses Guarantor may have to the Guaranteed Obligations by reason of an election of remedies by the Lender, and (ii) any rights or defenses Guarantor may have by reason of protection afforded to Borrower with respect to the Guaranteed Obligations pursuant to the antideficiency or other laws of the State of California limiting or discharging Borrower's indebtedness, including, without limitation, Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure, as amended or recodified from time to time.
(c) If and to the extent permitted such waivers of Guarantor's rights of subrogation, reimbursement, indemnity and contribution, and any other rights and defenses waived by law Guarantor hereunder are unenforceable, Guarantor hereby agrees that all such rights shall be junior and subordinate to the rights of the Lender to obtain payment and performance of the Guaranteed Obligations and to all rights of the Lender in and to any property, including the Property, which now or hereafter serves or could serve as collateral security for the Guaranteed Obligations.
(d) The above waivers include, but are not limited to, the waiver by Guarantor of:
(i) all rights and defenses arising out of an election of remedies by any Secured Party the Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, remedies has destroyed Guarantor's rights or otherwise impaired such Grantor’s rights of subrogation and and/or reimbursement against Borrower by the principal. Each Grantor hereby authorizes operation of Section 580d of the California Code of Civil Procedure or otherwise;
(ii) all rights and empowers protections of any kind which Guarantor may have for any reason which would affect or limit the Secured Parties amount of any recovery by the Lender from Guarantor including, without limitation, the right to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is fair market value hearing pursuant to Section 580a of the intent and purpose California Code of such Grantor that its obligations under this Security Agreement shall be absolute, independent and unconditional under Civil Procedure.
(iii) any and all circumstances. Specifically, benefits available to sureties and without in any way limiting the foregoing, each Grantor hereby waives creditors which might otherwise be available to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising Guarantor under Sections 2846, 2847, 2848 and 2849 of the California Civil Code Sections 2809 (reduction of surety's obligation where larger than principal's), 2810 (liability of surety when principal is not liable), 2815 (revocation of continuing guaranty), 2819 (exoneration of surety), 2839 (performance of principal obligation or offer of performance), 2845 (requiring creditor to proceed against principal), 2849 (security for performance of principal obligation), 2850 (hypothecation of surety's property), 2899 (order of resort to property), and 3433 (creditor's entitlement to satisfy claim from several funds), as amended or recodified from time to time; and
(e) Guarantor shall not be discharged, released or exonerated, in any other right way, from its absolute, unconditional and independent liabilities hereunder, even though any rights or defenses which Guarantor may have against Borrower, the Lender or others may be destroyed, diminished or otherwise affected, by:
(i) Any declaration by the Lender of recourse to or with a default in respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing Guaranteed Obligations;
(ii) The exercise by the Lender of any rights or to remedies against Borrower or any collateral for the Notes Obligations until all other person;
(iii) The failure of the Notes Obligations (other than obligations expressly stated Lender to survive such payment) have been paid and satisfied in full in cash. In connection with the foregoing, each Grantor expressly waives to the extent permitted by law exercise any and all rights of subrogation or remedies against the Issuer Borrower or any Subsidiary, and each Grantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Obligations.other person; or
Appears in 1 contract
Samples: Revolving Credit Agreement (Interstate Hotels & Resorts Inc)
California Waivers. To Solely to the extent California law applies, in addition to and not in lieu of any other provisions of this Security AgreementGuaranty, each Grantor representsGuarantor agrees, warrantsto the extent permitted by applicable law, covenants and agrees as follows:
8.20.1 (a) The obligations of such Grantor the Guarantors under this Security Agreement Guaranty shall be performed without demand by any Secured Party Holder of Guaranteed Obligations and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any of the Notes Loan Documents, Swap Agreements or Banking Services Agreements, and without regard to any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2810 and agrees that by doing so such Grantor Guarantor shall be liable even if the Issuer or the relevant Subsidiary had no liability at the time of execution of the applicable Notes Documents Loan Documents, Swap Agreements or Banking Services Agreements, or thereafter ceases to be liable. Each Grantor Guarantor hereby waives to the extent permitted by law any and all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so such GrantorGuarantor’s liability may be larger in amount and more burdensome than that of the Issuer and/or the relevant SubsidiarySubsidiaries. Each Grantor Guarantor hereby waives to the extent permitted by law the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Security Agreement Guaranty and agrees that such GrantorGuarantor’s obligations shall not be affected by any circumstances, whether or not referred to in this Security Agreement Guaranty which might otherwise constitute a legal or equitable discharge of a surety or a guarantor. Each Grantor Guarantor hereby waives to the extent permitted by law the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors thereunder.
8.20.2 (b) In accordance with Section 2856 of the California Civil Code, each Grantor Guarantor hereby waives to the extent permitted by law all rights and defenses arising out of an election of remedies by any Secured Party Holder of Guaranteed Obligations even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Notes Obligations, remedies has destroyed or otherwise impaired such GrantorGuarantor’s rights of subrogation and reimbursement against the principalprincipal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. Each Grantor Guarantor hereby authorizes and empowers the Secured Parties Holders of Guaranteed Obligations to exercise, in their sole and absolute discretion, any right or remedy, or any combination thereof, which may then be available, since it is the intent and purpose of such Grantor Guarantor that its obligations under this Security Agreement Guaranty shall be absolute, independent and unconditional under any and all circumstances. Specifically, and without in any way limiting the foregoing, each Grantor such Guarantor hereby waives to the extent permitted by law any rights of subrogation, indemnification, contribution or reimbursement arising under Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any other right of recourse to or with respect to the Issuer or any Subsidiary, any constituent of the Issuer or any Subsidiary, any other Person, or the assets or property of any of the foregoing or to any collateral for the Notes Guaranteed Obligations until all (i) satisfaction of the Notes Final Release Conditions, (ii) all obligations owed to the Holders of Guaranteed Obligations (other than obligations expressly stated to survive such payment) under the Loan Documents, the Swap Agreements and the Banking Services Agreements have been paid fully performed, (iii) the Holders of Guaranteed Obligations have released, transferred or disposed of all their right, title and satisfied interest in full in cashsuch collateral or any other security for the Guaranteed Obligations and (iv) there has expired the maximum possible period thereafter during which any payment made by such Guarantor, any other Guarantor, any Subsidiary Guarantor or others to any Holder of Guaranteed Obligations with respect to the Guaranteed Obligations or any other obligations owed to the Holders of Guaranteed Obligations under the Loan Documents, the Swap Agreements and the Banking Services Agreements could be deemed a preference under the Bankruptcy Code of the United States. In connection with the foregoing, each Grantor Guarantor expressly waives to the extent permitted by law any and all rights of subrogation against the Issuer or any Subsidiary, and each Grantor Guarantor hereby waives to the extent permitted by law any rights to enforce any remedy which any Secured Party Holder of Guaranteed Obligations may have against the Issuer or any Subsidiary and any right to participate in any collateral for the Notes Guaranteed Obligations. Each Guarantor recognizes that, pursuant to Section 580d of the California Code of Civil Procedure, the Holders of Guaranteed Obligations realization through nonjudicial foreclosure upon any real property could terminate any right of the Holders of Guaranteed Obligations to recover a deficiency judgment against any Subsidiary, thereby terminating subrogation rights which other parties might otherwise have against such Subsidiary. In the absence of an adequate waiver, such a termination of subrogation rights could create a defense to enforcement of this Guaranty against such parties. Each Guarantor hereby unconditionally and irrevocably waives any such defense.
(c) Without limiting the generality of the foregoing, each Guarantor hereby waives, to the fullest extent permitted by law, diligence in collecting the Obligations, presentment, demand for payment, protest, all notices with respect to this Guaranty or any other Loan Document, Swap Agreement or Banking Services Agreement which may be required by statute, rule of law or otherwise to preserve the Holders’ of Guaranteed Obligations rights against such Guarantor under this Guaranty, including, but not limited to, notice of acceptance, notice of any amendment of the Loan Documents, any Swap Agreement or any Banking Services Agreement, notice of the occurrence of any default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and notice of the incurring by any Subsidiary of any obligation or Indebtedness.
(d) Without limiting the foregoing, each Guarantor waives (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to such Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, including any and all rights or defenses such Guarantor may have by reason of protection afforded to any Subsidiary with respect to any of the obligations of such Guarantor under this Guaranty by reason of a nonjudicial foreclosure or pursuant to the antideficiency or other laws of the State of California limiting or discharging the Obligations. Without limiting the generality of the foregoing, each Guarantor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if such Guarantor had not given this waiver, would otherwise limit such Guarantor’s liability after a nonjudicial foreclosure sale to the difference between the obligations of such Guarantor under this Article X and the fair market value of the property or interests sold at such nonjudicial foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if such Guarantor had not given this waiver, would otherwise limit the Holders’ of Guaranteed Obligations right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), and (iii) California Code of Civil Procedure Section 726 (which Section, if such Guarantor had not given this waiver, among other things, would otherwise require the Holders of Guaranteed Obligations to exhaust all of their security before a personal judgment could be obtained for a deficiency).
(e) Likewise, each Guarantor waives (i) any and all rights and defenses available to such Guarantor under California Civil Code Sections 2899 and 3433 and (ii) any rights or defenses such Guarantor may have with respect to its obligations as a guarantor by reason of any election of remedies by any Holder of Guaranteed Obligations.
(f) Each Guarantor further waives all rights and defenses that such Guarantor may have because any Subsidiary’s debt is secured by real property. This means, among other things, that:
(i) the Holders of Guaranteed Obligations may collect from such Guarantor without first foreclosing on any real or personal property collateral pledged by the applicable Subsidiary; and
(ii) if any Holder of Guaranteed Obligations forecloses on any real property collateral pledged by a Subsidiary:
(A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and
(B) the Holders of Guaranteed Obligations may collect from such Guarantor even if the Holders of Guaranteed Obligations, by foreclosing on the real property collateral, have destroyed any rights such Guarantor may have to collect from the Subsidiaries. This is an unconditional and irrevocable waiver of any rights and defenses such Guarantor may have because any Subsidiary’s debt evidenced by the Loan Documents, any Swap Agreement or any Banking Services Agreement 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 California Code of Civil Procedure.
(g) [reserved].
(h) The provisions of this Section 28 shall survive any satisfaction and discharge of the Guarantors and the Subsidiary Guarantors by virtue of any payment, court order or any applicable law, except the satisfaction of the Final Release Conditions.
Appears in 1 contract
