Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of: (i) intentionally omitted; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; (iv) any homestead exemption or any other exemption under applicable law; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral; (vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations; (vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations; (x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower. (xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents; (xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document; (xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or (xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 5 contracts
Samples: Guaranty Agreement (Inland Western Retail Real Estate Trust Inc), Guaranty Agreement (Inland Western Retail Real Estate Trust Inc), Guaranty Agreement (Inland Western Retail Real Estate Trust Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, in each case, unless the Guaranteed Obligations themselves have been changed, reduced, discharged or terminated, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other person in any Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any laws (other than statutes of limitation) regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Lender against Guarantor, to the fullest extent permitted by law;
(v) any homestead exemption or any other exemption under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person or collateral;
(vivii) whether express or by operation of law, any partial release of the liability of Guarantor hereunderhereunder (except to the extent paid, performed or if one expressly so released) or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations (collectively “Change”), provided however, that the Lender has furnished the Guarantor with a prior written notice setting forth such a Change, and, provided further, that the Guarantor shall be liable to guarantee the Guaranteed Obligations, as so amended, supplemented, modified, extended, renewed waived of otherwise changed, as of the effective date of such Change;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyperson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or the Security Agreement, any other Loan Document; provided, however, that the foregoing shall not be deemed a waiver of Guarantor’s right to assert any compulsory counterclaim maintained in a court of the United States or the State of Florida if such counterclaim is compelled under local law or procedure;
(xiiixii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxiii) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xiv) any other condition, event, omission, or action that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xv) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any reasonable attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Lender from Borrower, any other person or any other source (other than from Guarantor pursuant to a demand by Lender hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Lender’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, then unless similarly stayed or delayed all such amounts shall nonetheless be payable by Guarantor within 10 Business Days following receipt of a written demand from the Lender.
(f) Guarantor hereby waives and agrees not to assert or take advantage of (i) any right or claim of right to cause a marshalling of any of Borrower’s assets or the assets of any other party now or hereafter held as security for the Indebtedness; (ii) the defense of laches in any action hereunder or for the payment of the Indebtedness and performance of any obligation hereby guaranteed; (iii) any defense that may arise by reason of lack of authority of Guarantor, any other guarantor of the Loan, or Borrower or any other person or entity, or the voluntary or involuntary dissolution of Borrower or Guarantor, or the failure of Lender to file or enforce a claim against the estate (either in administration, bankruptcy, or any other proceeding) of Borrower or any other person or entity; (iv) any defense based on demand the failure of Lender to give notice of the existence, creation, or incurring of any new or additional indebtedness or obligation, or of any action or nonaction on the part of any other person whomsoever, or any modification of the terms of the Loan Documents, or the Indebtedness, in connection with any obligation hereby guaranteed; (v) any defense based upon an election of remedies by Lender which destroys or otherwise impairs any subrogation rights of Guarantor or any other guarantor of the Loan or the right of Guarantor to proceed against Borrower or any other guarantor for reimbursement, or both; (vi) any defense based upon failure of Lender to commence an action against Borrower; (vii) any defense based upon acceptance of this Guaranty by Lender; (viii) any defense based upon the invalidity or unenforceability of any of the Loan Documents; (ix) any defense based upon any complete or partial release of liability contained in any of the Loan Documents; (x) any defense based upon any transfer by Borrower of all or any part of the collateral for the Loan; (xi) any defense based upon the failure of Lender to perfect any security or to extend or renew the perfection of any security; and (xii) any other legal or equitable defenses whatsoever to which Guarantor might otherwise be entitled.
Appears in 3 contracts
Samples: Guaranty of Payment and Performance (Venus Concept Inc.), Guaranty of Payment and Performance (Venus Concept Inc.), Guaranty of Payment and Performance (Venus Concept Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent and Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrowers under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Administrative Agent or any Lender against Guarantor, to the fullest extent permitted by Law;
(v) any homestead exemption or any other exemption under applicable lawLaw;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other any Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent or Lenders to the Other Borrower, Guarantor, and/or any Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Administrative Agent or any Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Administrative Agent or any Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Potential Default, or of any other action taken or refrained from being taken by Administrative Agent or any Lender against the Other any Borrower or any security or other recourse, or of any new agreement between Lenderor among Administrative Agent, any Lender and the Other any Borrower, it being understood that Lender Administrative Agent shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other each Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")any collateral, including, but not limited to, including any changes in the business or financial condition of the Other each Borrower or the Other Propertyany collateral, and the Guarantor acknowledges and agrees that the neither Administrative Agent nor any Lender shall have no any duty to notify the Guarantor of any information which the Administrative Agent or such Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property any Borrower or for the purpose of performing any term or covenant contained in any of the Loan Documentscollateral;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim set‑off or other right that Guarantor may at any time have against the Other any Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the Mortgage, Loan Agreement or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other any Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other any Borrower's ’s obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other any Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other any Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other any Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Administrative Agent or any Lender. , or any action taken or omitted by Administrative Agent or any Lender in any such proceedings, including any election to have Administrative Agent’s or such Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Administrative Agent or such Lender in any such proceedings or the taking and holding by Administrative Agent or such Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any of the Guaranteed Obligations; or
(xvii) Administrative Agent or any Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other any Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other any Borrower or any other party to Administrative Agent or such Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or any Lender or paid by Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Administrative Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Administrative Agent or any Lender in connection with any such event. .
(c) It is the intent of Guarantor Guarantor, Administrative Agent and each Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Administrative Agent or any Lender to any Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Administrative Agent or any Lender from any Borrower, any other Person or any other source (other than from Guarantor pursuant to a demand by Administrative Agent hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Administrative Agent or any Lender. Administrative Agent shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Administrative Agent’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by any Borrower under any Note, the Other Borrower of the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(f) Guarantor further waives: (i) any defense to the recovery by Administrative Agent or Lenders against Guarantor of any deficiency or otherwise to the enforcement of this Guaranty or any security for this Guaranty based upon the election by Administrative Agent or Lenders of any remedy against Guarantor or Borrower, including the defense to enforcement of this Guaranty (the so-called “Gradsky” defense) which, absent this waiver, Guarantor would have by virtue of an election by Administrative Agent or Lenders to conduct a non-judicial foreclosure sale (also known as a “trustee’s sale”) of any real property security for the Indebtedness, it being understood by Guarantor that any such non-judicial foreclosure sale will destroy, by operation of California Code of Civil Procedure (“CCP”) Section 580d, all rights of any party to a deficiency judgment against Borrower and, as a consequence, will destroy all rights that Guarantor would otherwise have (including the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against Borrower; (ii) any defense or benefits that may be derived from CCP Sections 580a, 580b, 580d or 726, or comparable provisions of the laws of any other jurisdiction and all other anti-deficiency and one form of action defenses under the laws of California and any other jurisdiction; and (iii) any right to a fair value hearing under CCP Section 580a, or any other similar law, to determine the size of any deficiency owing (for which Guarantor would be liable hereunder) following a non-judicial foreclosure sale.
(g) Without limiting the foregoing or anything else contained in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. This means, among other things:
(i) That Administrative Agent or Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower; and
(ii) If Administrative Agent, for the benefit of Lenders, forecloses on any real property collateral pledged by Borrower: (A) the amount of the Guaranteed Obligations 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) Administrative Agent and/or Lenders may collect from Guarantor even if Administrative Agent, by foreclosing on the real property collateral for Lenders’ benefit, has destroyed any right Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d, or 726 of the CCP.
(h) Guarantor waives all rights and defenses arising out of an election of remedies by Administrative Agent or Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by operation of Section 580d of the CCP or otherwise.
(i) Guarantor waives Guarantor’s rights of subrogation and reimbursement, including (i) any defenses Guarantor may have by reason of an election of remedies by Administrative Agent or 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 anti-deficiency or other laws of California limiting or discharging Borrower’s obligations, including Sections 580a, 580b, 580d or 726 of the CCP.
(j) Guarantor waives any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the laws of any other jurisdiction and further waives all other suretyship defenses Guarantor would otherwise have under the laws of California or any other jurisdiction.
(k) No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor.
Appears in 2 contracts
Samples: Guaranty Agreement (KBS Real Estate Investment Trust III, Inc.), Guaranty Agreement (KBS Real Estate Investment Trust II, Inc.)
Certain Agreements and Waivers by Guarantor. (a) To the extent permitted by applicable law, Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the release or taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any homestead exemption statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any other exemption under applicable lawaction or proceeding brought by Lender against Guarantor, to the fullest extent permitted by Law;
(v) any exemption that is waivable under applicable Law;
(vi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, including without limitation, limitation material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to the construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, the Environmental Agreement or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, action that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any of the Guaranteed Obligations;
(xvii) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(xviii) any liability, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any reasonable attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. .
(d) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, any other Loan Document, or any Swap Contract (if any) is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 2 contracts
Samples: Limited Guaranty Agreement, Limited Guaranty Agreement (Inland Diversified Real Estate Trust, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
: (i) intentionally omitted;
any limitation of liability or recourse in any other Loan Document or arising under any law; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
; (iv) any homestead exemption or any other exemption under applicable law;
; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person or entity or collateral;
; (vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
; (vii) the death, death of Borrower or the appointment of a conservator or guardian for Borrower; (viii) the insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
; (viiiix) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure depart from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person or entity at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
; (ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
; (xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
; (xixii) whether for any reason Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations, or to pay the amount thereof to someone else; (xiii) the making of advances by Lender to protect its interest in the Property generally the Other Mortgageany property encumbered by a Security Agreement, to preserve the value of such Property any property encumbered by a Security Agreement or for the purpose to facilitate performance of performing any term or covenant contained in any of the Loan .Loan Documents;
; (xiixiv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyperson or entity, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Note or any other Loan Document;
; (xiiixv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members persons creating same the Guaranteed Obligations acted in excess outside the scope of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon on this Guaranty regardless of whether the Other Borrower or any other Person person or entity be found not liable on for the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxvi) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member other person or manager of the Other Borrowerentity, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. ; or (xvii) any other condition, event, omission, action or inaction that would in the absence of this Section 3(a) result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage person or the other Loan Documents entity to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party person or entity (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Lender shall be entitled to continue to hold this Guaranty in its possession for a period of one year from the date the Guaranteed Obligations are paid in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lender hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of the Guaranteed Obligations Note or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
(d) Lender, at its option and in its sole discretion, may proceed against any collateral securing any of the Guaranteed Obligations by way of judicial or non-judicial foreclosure or any other lawful remedy for the enforcement of its rights, and the obligations of Guarantor under this Guaranty shall survive Lender’s exercise of any such right or remedy. Guarantor understands that Lender’s exercise of its rights and remedies including a non-judicial foreclosure of any Security Agreement could impair, eliminate or destroy subrogation, reimbursement, contribution, indemnification and other rights Guarantor may have against Borrower or others for amounts paid by Guarantor under this Guaranty. Nevertheless, Guarantor hereby waives and relinquishes any claim or defense based upon the loss of any such rights, election of remedies, discharge and satisfaction of the Guaranteed Obligations and, to the fullest extent permitted by law following a non-judicial foreclosure of any Security Agreement, any other claim or defense which may arise under applicable law. If any collateral securing the Guaranteed Obligations is foreclosed or realized upon whether judicially or non-judicially before Lender proceeds against Guarantor under this Guaranty, then Guarantor’s liability for the Guaranteed Obligations shall be the deficiency resulting from the judicial or non-judicial sale or other disposition; i.e., the difference between the amount of the Guaranteed Obligations on the day of the foreclosure sale or other disposition (including principal, accrued interest, attorneys’ fees including on appeal or otherwise), late charges and costs and expenses of foreclosure or other disposition) and the amount realized at the foreclosure sale or other disposition. To the fullest extent permitted by law, Guarantor waives the right to object to the amount that may be bid by Lender at any foreclosure sale. If not paid in full within thirty (30) days following Lender’s demand, Guarantor’s liability for any deficiency following a non-judicial foreclosure of any Security Agreement securing any of the Guaranteed Obligations shall bear interest from the date of the foreclosure sale, compounded monthly, at the default interest rate in the Note
(e) Guarantor acknowledges that Lender has no obligation to Guarantor to make and additional loans or advances to Borrower or to see to the proper use and application of the funds so advanced. Guarantor understands that the Guaranteed Obligations and this Guaranty can involve substantial risks for Guarantor and agrees that Lender is not a trustee or fiduciary for Guarantor and undertakes no duty, obligation, responsibility or special relationship to Guarantor or to see to proper use and application of any loan or advance or otherwise to protect and not act adversely to Guarantor’s interests. Any application or use of Loan proceeds or advances for purposes other than those provided for in the Loan Documents shall not defeat, limit or impair this Guaranty in whole or in part.
(f) Guarantor represents, warrants and covenants with Lender that Guarantor has not presently guaranteed any other indebtedness of Borrower and shall not guarantee any other indebtedness of Borrower unless such other lender shall enter into a written agreement with Lender that this Guaranty shall be superior to Guarantor’s guarantee of the other lender's indebtedness, the form and substance of such written agreement to be subject to Lender’s prior approval.
Appears in 2 contracts
Samples: Guaranty Agreement (Tullys Coffee Corp), Guaranty Agreement (Tullys Coffee Corp)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedi. any limitation on the liability of, or recourse against, any other person in the Note or the Mortgage or arising under any Law;
(ii) . any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the Note or the Mortgage;
(iii) . the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) . the operation of any statutes of limitation or other laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Lender against Guarantor, to the fullest extent permitted by Law;
v. any homestead exemption or any other exemption under applicable law;
(v) vi. any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person or collateral;
(vi) vii. whether express or by operation of law, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) viii. the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) ix. either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan DocumentsNote or the Mortgage, including, including without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents Note or the Mortgage or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) x. any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Documentthe Note or the Mortgage, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) xi. any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Documentthe Note or Mortgage, or of any release of or change in any security, or of the occurrence or existence of any default, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning Borrower;
xii. if for any reason Lender is required to refund any payment by Borrower to any other party liable for the Other Borrower.payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xi) xiii. the making of advances by Lender to protect its interest in the Property generally collateral for the Other MortgageIndebtedness, preserve the value of such Property collateral or for the purpose of performing any term or covenant contained in any of the Loan DocumentsNote or the Mortgage;
(xii) xiv. the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyperson, whether or not arising in connection with this Guaranty, the Note, Note or the Mortgage, or any other Loan Document;
(xiii) xv. the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra vires, or because the officers or members persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other bexxxxx Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) xvi. any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender, or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
xvii. any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
xviii. any early termination of any of the Guaranteed Obligations; or
xix. Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any reasonable attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Indebtedness, whether voluntary or involuntary, received by Lender from Borrower, any other person or any other source (other than from Guarantor pursuant to a demand by Lender hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Note which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Note in Lender’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Mortgage is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 2 contracts
Samples: Guaranty Agreement (Compx International Inc), Guaranty Agreement (Nl Industries Inc)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's Lenders’ rights or and remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective offollowing:
(ia) intentionally omittedany limitation of liability or recourse in any other Loan Document;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiib) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed ObligationsObligation;
(iv) any homestead exemption or any other exemption under applicable law;
(vc) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, impairment or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateralObligation;
(vid) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if there is more than one or more other guaranties are now or hereafter obtained by Lender covering all or any part person signing a guaranty of the Guaranteed ObligationsObligation, any the complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligationsthem hereunder;
(viie) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower Borrower, Guarantor or any other party at any time liable for the payment or performance of any or all of the Guaranteed ObligationsObligation, whether now existing or hereafter occurring;
(viiif) renewal, extension, modification or rearrangement of the payment or performance of any or all of the Guaranteed Obligation, either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted or given by Lenders to Borrower or any other Guarantor from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligationstime;
(ixg) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Lenders to enforce take or prosecute any action for the collection or enforcement of any of the Guaranteed Obligations, Obligation or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to upon any security for the Guaranteed Obligations, therefor or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xh) any failure of Lender Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, modification or assignment of the Guaranteed Obligations Obligation or any part thereof, or of any Loan Document, or of any release of or change in any security, security or of any other action taken or refrained from being taken by Lender Lenders against the Other Borrower or any security or other recourse, recourse or of any new agreement between Lender, Lenders and the Other Borrower, it being understood that Lender Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan DocumentsObligation;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiiii) the unenforceability of all or any part of the Guaranteed Obligations Obligation against the Other Borrower, whether because the Guaranteed Obligations exceed Obligation exceeds the amount permitted by law or violate violates any usury law, or because the act of creating the Guaranteed ObligationsObligation, or any part thereof, is ULTRA XXXXXultra vxxxx, or because the officers or members persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect theretothereto (other than payment and performance of the Indebtedness), or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstanceotherwise, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed ObligationsObligation, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations)reason; or
(xivj) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect payment by Borrower to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Lenders is held to constitute a preference, fraudulent transfer or other voidable payment preference under any bankruptcy, insolvency or similar law, the bankruptcy laws or if for any other reason Lender is Lenders are required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such eventsomeone else. It is the intent of Guarantor and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are Obligation is fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the such obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 2 contracts
Samples: Credit Agreement (Camden Property Trust), Credit Agreement (Camden Property Trust)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Lenders’ rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender the Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the Plans and other terms or aspects of construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the other Lenders, to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower or any security or other recourse, or of any new agreement between LenderAdministrative Agent, for the Lenders, and the Other Borrower, it being understood that Lender unless otherwise expressly provided for in this Guaranty, the Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the Lenders may have concerning the Other Borrower.
(xi) if for any reason any Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent, on behalf of the Lenders, to protect its the interest of the Lenders in the Property generally the Other MortgageProperty, preserve the value of such Property the Property, or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent and the Lenders.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to any Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender the Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by any such Lender or paid by any such Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by any such Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender the Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent, on behalf of the Lenders, shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Loan Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of the Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower Note, the Loan Agreement, or any other Loan Document that constitutes any of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent, on behalf of the Lenders.
Appears in 2 contracts
Samples: Guaranty Agreement (Behringer Harvard Opportunity REIT I, Inc.), Guaranty Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's the Beneficiaries’ rights or remedies nor and all of Guarantor's ’s obligations under the terms of this Guaranty shall remain in full force and effect and shall not be released, diminished, impaired, reduced or affected by, or deemed to be satisfied by, nor shall Guarantor be exonerated, discharged or released (by virtue of any Law, arrangement or relationship) by, any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiia) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vib) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, Law or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligationsotherwise, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Subject Person or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations, or any limitation, discharge, cessation or partial release of the liability of Guarantor hereunder (other than discharge or release under the express provisions of this Guaranty, including by virtue of satisfaction of the Guaranteed Obligations, under the express terms of the Definitive Agreements or by agreement of Beneficiaries);
(viic) the deathbankruptcy, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower any Subject Person or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiid) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, amendment, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan DocumentsObligations, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, Definitive Agreements or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender a Beneficiary to the Other Borrowerany Subject Person, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixe) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or a Beneficiary to take or prosecute (or in taking or prosecuting) any action in connection with for the collection of any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xf) if for any failure of Lender reason a Beneficiary is required to notify Guarantor refund any payment by any Subject Person or any other party liable for the payment of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment all of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against pay the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required amount thereof to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documentssomeone else;
(xiig) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrowerany Subject Person, LenderBeneficiary, or any other partyPerson, whether or not arising in connection with this Guaranty, Guaranty or the Note, the Mortgage, or any other Loan DocumentDefinitive Agreements;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivh) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower any Subject Person or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lendera Beneficiary;
(i) any absence of any notice to, or knowledge by, Guarantor, of the existence or occurrence of any of the matters or events set forth in the foregoing subsections (a) through (h); or
(j) the failure to provide any notices or demands, whether of presentment, protest, dishonor or otherwise, other than (i) any notices and demands expressly set forth herein, and (ii) such notices or demands as may be required by applicable Law which cannot be waived. In the event any payment to Lender by the Other Borrower any Subject Person or any other party under Person to a Beneficiary in respect of the Other Note, the Other Mortgage or the other Loan Documents Guaranteed Obligations is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender reason, a Beneficiary is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower such Subject Person or any such other party Person to Lender such Beneficiary shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Beneficiaries of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender such Beneficiary or paid by Lender such Beneficiary to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender such Beneficiary and any attorneys' ’ fees, costs and expenses paid or incurred by Lender such Beneficiary in connection with any such event. It is In addition to the intent other matters set forth in this Section 3, until all Guaranteed Obligations have been paid in full, Guarantor hereby agrees not to assert any claim of subrogation with respect to the Guaranteed Obligations, or any right of contribution, reimbursement, indemnification or other rights of recovery against the Subject Persons in respect of the Guaranteed Obligations, provided that nothing herein shall prevent transfers of funds between the Subject Persons and Guarantor in the ordinary course of business. If any amount shall be paid to Guarantor in violation of the preceding sentence, such amount shall be held in trust for the benefit of Beneficiaries and immediately turned over to Beneficiaries, with any necessary endorsement, to be applied to the Guaranteed Obligations. Guarantor agrees that, as between Guarantor and Lender that the obligations and liabilities Beneficiaries as of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until time, the Guaranteed Obligations are fully accrued as of such time may be declared to be forthwith due and finally paid payable for purposes of Section 1 notwithstanding any stay, injunction or defeased, other prohibition preventing such declaration as against any Subject Person and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or releasedthat, in whole the event of such declaration, such Guaranteed Obligations (whether or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount not due and payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts Subject Person) shall nonetheless be forthwith become due and payable by Guarantor on demand for purposes of Section 1. Each failure by Lenderany Subject Person to pay any Guaranteed Obligations shall give rise to a separate cause of action herewith, and separate suits may be brought hereunder as each cause of action arises.
Appears in 2 contracts
Samples: Guaranty (Exco Resources Inc), Guaranty (Exco Resources Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent and Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Lease Obligations;
(iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Administrative Agent or any Lender against Guarantor, to the fullest extent permitted by Law;
(v) any homestead exemption or any other exemption under applicable lawLaw;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Lease Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Lease Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Lease Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Lease Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to the construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Lease Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent or Lenders to the Other Borrower, Guarantor, and/or Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Lease Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Administrative Agent or any Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Lease Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Lease Obligations;
(xxi) any failure of Administrative Agent or any Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Lease Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Potential Default, or of any other action taken or refrained from being taken by Administrative Agent or any Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lenderor among Administrative Agent, any Lender and the Other Borrower, it being understood that Lender Administrative Agent shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Lease Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")any collateral, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other Propertyany collateral, and the Guarantor acknowledges and agrees that the neither Administrative Agent nor any Lender shall have no any duty to notify the Guarantor of any information which the Administrative Agent or such Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property Borrower or for the purpose of performing any term or covenant contained in any of the Loan Documentscollateral;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the Mortgage, Loan Agreement or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Lease Obligations against the Other Borrower, whether because the Guaranteed Lease Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Lease Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Lease Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Lease Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Lease Obligations, whether or not consented to by Administrative Agent or any Lender. , or any action taken or omitted by Administrative Agent or any Lender in any such proceedings, including any election to have Administrative Agent’s or such Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Administrative Agent or such Lender in any such proceedings or the taking and holding by Administrative Agent or such Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any of the Guaranteed Lease Obligations; or
(xvii) Administrative Agent or any Lender’s enforcement or forbearance from enforcement of the Guaranteed Lease Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other any Borrower or any other party to Administrative Agent or such Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or any Lender or paid by Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Lease Obligations), and any interest paid by Administrative Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Administrative Agent or any Lender in connection with any such event. .
(c) It is the intent of Guarantor Guarantor, Administrative Agent and each Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Lease Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Administrative Agent or any Lender to Borrower in excess of the Guaranteed Lease Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Administrative Agent or any Lender from Borrower, any other Person or any other source (other than from Guarantor pursuant to a demand by Administrative Agent hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Lease Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Lease Obligations that may remain owing to Administrative Agent or any Lender. Administrative Agent shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Administrative Agent’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under any Note, the Other Borrower of the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(f) Guarantor further waives: (i) any defense to the recovery by Administrative Agent or Lenders against Guarantor of any deficiency or otherwise to the enforcement of this Guaranty or any security for this Guaranty based upon the election by Administrative Agent or Lenders of any remedy against Guarantor or Borrower, including the defense to enforcement of this Guaranty (the so-called “Gradsky” defense) which, absent this waiver, Guarantor would have by virtue of an election by Administrative Agent or Lenders to conduct a non-judicial foreclosure sale (also known as a “trustee’s sale”) of any real property security for the Indebtedness, it being understood by Guarantor that any such non-judicial foreclosure sale will destroy, by operation of California Code of Civil Procedure (“CCP”) Section 580d, all rights of any party to a deficiency judgment against Borrower and, as a consequence, will destroy all rights that Guarantor would otherwise have (including the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against Borrower; (ii) any defense or benefits that may be derived from CCP Sections 580a, 580b, 580d or 726, or comparable provisions of the laws of any other jurisdiction and all other anti-deficiency and one form of action defenses under the laws of California and any other jurisdiction; and (iii) any right to a fair value hearing under CCP Section 580a, or any other similar law, to determine the size of any deficiency owing (for which Guarantor would be liable hereunder) following a non-judicial foreclosure sale.
(g) Without limiting the foregoing or anything else contained in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have because the Guaranteed Lease Obligations are secured by real property. This means, among other things:
(i) That Administrative Agent or Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower; and
(ii) If Administrative Agent, for the benefit of Lenders, forecloses on any real property collateral pledged by Borrower: (A) the amount of the Guaranteed Lease Obligations 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) Administrative Agent and/or Lenders may collect from Guarantor even if Administrative Agent, by foreclosing on the real property collateral for Lenders’ benefit, has destroyed any right Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses that Guarantor may have because the Guaranteed Lease Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d, or 726 of the CCP.
(h) Guarantor waives all rights and defenses arising out of an election of remedies by Administrative Agent or Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Guaranteed Lease Obligations, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by operation of Section 580d of the CCP or otherwise.
(i) Guarantor waives Guarantor’s rights of subrogation and reimbursement, including
(i) any defenses Guarantor may have by reason of an election of remedies by Administrative Agent or Lenders, and (ii) any rights or defenses Guarantor may have by reason of protection afforded to Borrower with respect to the Guaranteed Lease Obligations pursuant to the anti- deficiency or other laws of California limiting or discharging Borrower’s obligations, including Sections 580a, 580b, 580d or 726 of the CCP.
(j) Guarantor waives any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the laws of any other jurisdiction and further waives all other suretyship defenses Guarantor would otherwise have under the laws of California or any other jurisdiction.
(k) No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor.
Appears in 1 contract
Samples: Limited Completion Guaranty Agreement (KBS Real Estate Investment Trust II, Inc.)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's ’s rights or and remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective offollowing:
(ia) intentionally omittedany limitation of liability or recourse in any other Credit Document;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiib) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed ObligationsObligation;
(iv) any homestead exemption or any other exemption under applicable law;
(vc) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, impairment or loss of, or any failure to create or perfect perfect, any lien or security interest with respect to, or to any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateralObligation;
(vid) whether express or by operation of law, any partial release of the liability of Guarantor hereunderhereunder or any other Guarantor under a separate Guaranty, or if there is more than one or more other guaranties are now or hereafter obtained by Lender covering all or any part of person signing this Guaranty, the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligationsthem hereunder;
(viie) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of formform and/or name, structure or ownership, sale of all assets, or lack of corporate, partnership limited liability company or other power of Borrower, any of the Other Borrower undersigned, or any other party at any time liable for the payment or performance of any or all of the Guaranteed ObligationsObligation, whether now existing or hereafter occurring;
(viiif) renewal, extension, modification or rearrangement of the payment or performance of any or all of the Guaranteed Obligation, either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted or given by Lender to Borrower or Guarantor from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligationstime;
(ixg) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute any action for the collection or enforcement of any of the Guaranteed Obligations, Obligation or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to upon any security for the Guaranteed Obligations, therefor or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Credit Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xh) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, modification or assignment of the Guaranteed Obligations Obligation or any part thereof, or of any Loan Credit Document, or of any release of or change in any security, security or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, recourse or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan DocumentsObligation;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiiii) the unenforceability of all or any part of the Guaranteed Obligations Obligation against the Other Borrower, whether because the Guaranteed Obligations exceed Obligation exceeds the amount permitted by law or violate violates any usury law, or because the act of creating the Guaranteed ObligationsObligation, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstanceotherwise, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed ObligationsObligation, or any part thereof, for any reason reason;
(and regardless of j) any joinder of Other payment by Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment Guarantor to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment preference under any bankruptcy, insolvency or similar law, the bankruptcy laws or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by someone else; or
(k) the Other Borrower or any other party to Lender shall not constitute a release construction of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge the Project by Lender on its own behalf or on the account of this Guaranty or of Guarantor), as Borrower in accordance with the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such eventCredit Documents. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations Obligation or all amounts required to be paid by Guarantor under this Guaranty are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the such obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:of (and Guarantor hereby waives any rights or protections related to):
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other similar exemption under applicable lawApplicable Law and Guarantor hereby waives the benefit of any such exemption as to the Guaranteed Obligations;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed ObligationsObligations or the Debt (it being further understood and agreed that this Guaranty shall survive irrespective of any change in the time, manner or place of payment of either the Guaranteed Obligations and/or the Debt);
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.;
(xi) if for any reason that Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-set off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Bankruptcy Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. .
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Guarantor.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i1) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) any homestead exemption or any other exemption under applicable law;
(v5) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi6) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii7) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) 8) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the Plans and other terms or aspects of construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix9) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x10) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi11) if for any reason Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(12) the making of advances by Lender to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii13) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiii14) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv15) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. .
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Lender shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Environmental Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lender hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither LenderAdministrative Agent's nor Lenders' rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;
(vi) whether express or by operation of lawexcept as expressly provided for herein, any partial release of the liability of Guarantor hereunderhereunder (whether by operation of law or otherwise), or if one or more other guaranties are now or hereafter obtained by Lender Administrative Agent covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the Plans and other terms or aspects of construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent on behalf of the Lenders to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) except as expressly provided for herein, any failure of Lender Administrative Agent to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Administrative Agent and the Other Borrower, it being understood that Lender Administrative Agent shall not be required (other than as expressly provided herein) to give Guarantor any notice (other than as expressly provided herein) of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent or Lenders may have concerning the Other Borrower.
(xi) if for any reason Administrative Agent is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent on behalf of the Lenders to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim setoff or other right that Guarantor may at any time have against the Other Borrower, LenderLenders, Administrative Agent, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent; or
(xvi) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvii) [Reserved];
(xviii) Administrative Agent's enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(xix) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Interest Rate Protection Agreement or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents Lenders is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is Administrative Agent or Lenders are required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender Administrative Agent or Lenders shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender Administrative Agent or Lenders or paid by Lender Administrative Agent or Lenders to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender Administrative Agent or Lenders and any attorneys' fees, costs and expenses paid or incurred by Lender Administrative Agent or Lenders in connection with any such event. It is the intent of Guarantor and Lender Administrative Agent that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. .
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(d) Guarantor agrees that neither the Guarantor nor anyone claiming through or under the Guarantor shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in force, in order to prevent or hinder the enforcement or foreclosure of the Mortgage or the absolute sale of the Property or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat, and the Guarantor, for themselves and all who may at any time claim through or under any of them, hereby waive the benefit of all such laws and any and all rights to have the assets comprising the Property marshalled upon any foreclosure of the Mortgage.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Lender against Guarantor, to the fullest extent permitted by law;
(v) any homestead exemption or any other exemption that is waivable under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral Collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateralCollateral;
(vivii) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guarantyBorrower, or any complete or partial release or settlement of the Other Borrower Guarantor or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification amendment, modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, including without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter Collateral securing any or all of the Guaranteed ObligationsObligations in compliance with applicable law or in a commercially reasonable manner;
(xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other any Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Credit Agreement or any other Loan DocumentDocument other than the defense of payment;
(xiii) the invalidity or unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, action that would in the absence of this paragraph result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any (but less than all) of the Guaranteed Obligations;
(xvii) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis;
(xviii) all suretyship defenses and defenses in the nature thereof;
(xix) notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of nonpayment, nonperformance, nonobservance or default, or other proof or notice of demand whereby to charge Guarantor therefor; or
(xx) the avoidance of any lien in favor of Lender for any reason.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that that, until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of Xxxxxxxxx.
(x) Xxxx of Guarantor’s obligations shall be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Lender from Borrower, any other Person or any other source (other than from Guarantor pursuant to a guarantordemand by Lender hereunder) shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Lender’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Credit Agreement, or any other Loan Document, is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Strategic Student & Senior Housing Trust, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Borrower, Grantor or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower Borrower, Grantor or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Grantor, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or Grantor or any security or other recourse, or of any new agreement between Lender, Lender and the Other BorrowerBorrower or Grantor, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower Borrower, Grantor and the property secured by the Other Mortgage (the "OTHER PROPERTY")Property, including, but not limited to, any changes in the business or financial condition of the Other Borrower or Grantor or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other BorrowerBorrower or Grantor.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Grantor, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Limited Guaranty, the Mortgage, or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other BorrowerBorrower or Grantor, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower or Grantor has any valid defense, claim or offset with respect thereto, or because the Other Borrower's or Grantor's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower Borrower, Grantor or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower Borrower, Grantor or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or Grantor or any member or manager of the Other BorrowerBorrower or Grantor, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. .
(b) In the event any payment to Lender by the Other Borrower Borrower, Grantor or any other party under Section 6.l(a)(viii) of the Other Note, the Other Mortgage or the other Loan Documents Agreement to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower Borrower, Grantor or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. .
(c) If the time for payment of any amount payable by the Other Borrower or Grantor of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Inland Western Retail Real Estate Trust Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Lender against Guarantor, to the fullest extent permitted by Law;
(v) any homestead exemption or any other exemption under applicable lawLaw;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to the construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Loan Agreement or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, action that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any of the Guaranteed Obligations; or
(xvii) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Lender from Borrower, any other Person or any other source (other than from Guarantor pursuant to a demand by Lender hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Lender’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (KBS Real Estate Investment Trust III, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Lenders’ rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancestights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the Lenders, to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
; (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lenders and the Other Borrower, it being understood that Lender Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the other Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the other Lenders may have concerning the Other Borrower.
(xi) if for any reason any Lender is required to refund any payment by Borrower to any other party liable for the payment of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent to protect its interest in the Property generally the Other Mortgageany collateral, preserve the value of such Property any collateral or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the MortgageCredit Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or Administrative Agent and the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderLenders.
Appears in 1 contract
Samples: Guaranty Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Lender nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i1) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) any homestead exemption or any other exemption that is waivable under applicable law;
(v5) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi6) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii7) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) 8) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix9) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x10) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.;
(xi11) if for any reason Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(12) the making of advances by Lender to protect its their interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii13) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiii14) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv15) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. ; or
(16) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(17) any early termination of any of the Guaranteed Obligations;
(18) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(19) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Guarantor, Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Lender shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Environmental Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lender hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, any Swap Contract or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:of (and Guarantor hereby waives any rights or protections related to):
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other similar exemption under applicable lawApplicable Law and Guarantor hereby waives the benefit of any such exemption as to the Guaranteed Obligations;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed ObligationsObligations or the Debt (it being further understood and agreed that this Guaranty shall survive irrespective of any change in the time, manner or place of payment of either the Guaranteed Obligations and/or the Debt);
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.;
(xi) if for any reason that Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender to protect its interest in the Property generally any of the Other MortgageProperties, preserve the value of such Property any of the Properties or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-set off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Bankruptcy Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. .
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any reasonable attorneys' ’ fees, costs and expenses actually paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Guarantor.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on written demand by Lender.
Appears in 1 contract
Samples: Recourse Carve Out Guaranty (American Realty Capital Trust III, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither LenderGMACCM's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following following, events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender GMACCM covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Mortgagor or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower Mortgagor or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor, except as required under Section 4(d) above: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the final plans and specifications and other terms or aspects of construction of the improvements at the Mortgaged Property) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender GMACCM to the Other BorrowerMortgagor, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender GMACCM to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations; provided, however, GMACCM shall use reasonable efforts, taking into account all facts and circumstances, to recover any Loss amount and to remit the same to Guarantor;
(x) any failure of Lender GMACCM to notify Guarantor Guarantor, to the extent required under Section 4(d) above, of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender GMACCM against the Other Borrower Mortgagor or any security or other recourse, or of any new agreement between Lender, GMACCM and the Other BorrowerMortgagor, it being understood that Lender GMACCM shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Mortgagor, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyMortgagor, and the Guarantor acknowledges and agrees that the Lender GMACCM shall have no duty to notify the Guarantor of any information which the Lender GMACCM may have concerning the Other BorrowerMortgagor.
(xi) if any requirement for any reason that GMACCM is required to refund any payment by Mortgagor to any other party liable for the payment of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender GMACCM to protect its interest in the Property generally the Other MortgageMortgaged Property, preserve the value of such the Mortgaged Property or for the purpose of performing perform in any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other BorrowerMortgagor, LenderGMACCM, or any other partyPerson, whether or not arising arising, in connection with this Guaranty, the Mortgage Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other BorrowerMortgagor, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra virex, or xx because the officers or members Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower Mortgagor has any valid defense, claim or offset with respect thereto, or because the Other BorrowerMortgagor's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower Mortgagor or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower Mortgagor or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 II of the United States Code with respect to the Other Borrower Mortgagor or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. GMACCM.
(b) In the event any payment to Lender by the Other Borrower Mortgagor, Guarantor or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to GMACCM is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender GMACCM is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower Mortgagor, Guarantor or any other party Person to Lender GMACCM shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender GMACCM of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender GMACCM or paid by Lender GMACCM to Guarantor or another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender GMACCM and any attorneys' fees, costs and expenses paid or incurred by Lender GMACCM in connection with any such event. It is the intent of Guarantor and Lender GMACCM that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. GMACCM shall be entitled to continue to hold this Guaranty in its possession for so long as may be necessary (including any bankruptcy "preference" periods following the satisfaction of all Guaranteed Obligations) to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of GMACCM hereunder.
(c) If acceleration of the time for payment of any amount payable by Mortgagor under the Other Borrower of Mortgage Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderGMACCM.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Lenders’ rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender the Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Borrowers or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower Borrowers or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the Plans and other terms or aspects of construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the other Lenders, to the Other BorrowerBorrowers, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower Borrowers or any security or other recourse, or of any new agreement between LenderAdministrative Agent, for the Lenders, and the Other BorrowerBorrowers, it being understood that Lender unless otherwise expressly provided for in this Guaranty, the Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrowers, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrowers, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the Lenders may have concerning the Other BorrowerBorrowers.
(xi) if for any reason any Lender is required to refund any payment by Borrowers to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent, on behalf of the Lenders, to protect its the interest of the Lenders in the Property generally the Other MortgageCollateral, preserve the value of such Property the Collateral, or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other BorrowerBorrowers, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageCredit Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other BorrowerBorrowers, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra vxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has Borrowers have any valid defense, claim or offset with respect thereto, or because the Other Borrower's Borrowers’ obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower Borrowers or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower Borrowers or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower Borrowers or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent and the Lenders.
(b) In the event any payment to Lender by the Other Borrower Borrowers or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower Borrowers or any other party to any Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender the Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by any such Lender or paid by any such Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by any such Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender the Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent, on behalf of the Lenders, shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Credit Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of the Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrowers under the Other Borrower Note, the Credit Agreement, or any other Loan Document that constitutes any of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent, on behalf of the Lenders.
Appears in 1 contract
Samples: Guaranty Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent and Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Administrative Agent or any Lender against Guarantor, to the fullest extent permitted by Law;
(v) any homestead exemption or any other exemption under applicable lawLaw;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to the construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent or Lenders to the Other Borrower, Guarantor, and/or Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Administrative Agent or any Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Administrative Agent or any Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Potential Default, or of any other action taken or refrained from being taken by Administrative Agent or any Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lenderor among Administrative Agent, any Lender and the Other Borrower, it being understood that Lender Administrative Agent shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")any collateral, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other Propertyany collateral, and the Guarantor acknowledges and agrees that the neither Administrative Agent nor any Lender shall have no any duty to notify the Guarantor of any information which the Administrative Agent or such Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property Borrower or for the purpose of performing any term or covenant contained in any of the Loan Documentscollateral;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the Mortgage, Loan Agreement or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Administrative Agent or any Lender. , or any action taken or omitted by Administrative Agent or any Lender in any such proceedings, including any election to have Administrative Agent’s or such Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Administrative Agent or such Lender in any such proceedings or the taking and holding by Administrative Agent or such Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any of the Guaranteed Obligations; or
(xvii) Administrative Agent or any Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other any Borrower or any other party to Administrative Agent or such Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or any Lender or paid by Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Administrative Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Administrative Agent or any Lender in connection with any such event. .
(c) It is the intent of Guarantor Guarantor, Administrative Agent and each Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Administrative Agent or any Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Administrative Agent or any Lender from Borrower, any other Person or any other source (other than from Guarantor pursuant to a demand by Administrative Agent hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Administrative Agent or any Lender. Administrative Agent shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Administrative Agent’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under any Note, the Other Borrower of the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(f) This Guaranty may not be changed orally and no obligation of Guarantor can be released or waived by Administrative Agent except by a signed writing by an authorized officer of Administrative Agent.
(g) Guarantor hereby waives any rights it might have under C.R.S. §§ 00-00-000 and 103.
(h) [Intentionally Omitted.]
(i) Guarantor waives all rights and defenses arising out of an election of remedies by Administrative Agent and Lenders, even though that election of remedies has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by operation of any applicable Law.
(j) Guarantor waives Guarantor’s rights of subrogation and reimbursement, including any rights or defenses Guarantor may have by reason of protection afforded to Borrower with respect to the Guaranteed Obligations pursuant to the anti-deficiency or other Laws of Colorado limiting or discharging Borrower’s obligations.
(k) Guarantor waives notice of acceptance of this Guaranty, and all other suretyship defenses Guarantor would otherwise have under the Laws of California or any other jurisdiction.
(l) No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor.
Appears in 1 contract
Samples: Limited Payment Guaranty Agreement (KBS Real Estate Investment Trust II, Inc.)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's rights or and remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective offollowing:
(ia) intentionally omittedany limitation of liability or recourse in any other Loan Document;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiib) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed ObligationsObligation;
(iv) any homestead exemption or any other exemption under applicable law;
(vc) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, impairment or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateralObligation;
(vid) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if there is more than one or more other guaranties are now or hereafter obtained by Lender covering all or any part of person signing this Guaranty, the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligationsthem hereunder;
(viie) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of formform and/or name, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower, any of the Other Borrower undersigned, or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with Obligation, whether now existing or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documentshereafter occurring, including, without limitation, material alterations the occurrence of any event which would cause Guarantor and/or an Affiliate of Guarantor to no longer be the owner of the terms of payment (including changes in maturity date(s) and interest rate(s)) Property, the Existing Projects or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Borrower under the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or Documents;
(f) any adjustment, indulgence, forbearance, or compromise that may be granted or given by Lender to Borrower or Guarantor from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligationstime;
(ixg) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute any action for the collection or enforcement of any of the Guaranteed Obligations, Obligation or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to upon any security for the Guaranteed Obligations, therefor or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xh) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, security or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, recourse or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed ObligationsObligation; provided, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantorhowever, and the Guarantor nothing contained in this Guaranty shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that relieve the Lender shall have no duty of its obligation to notify provide notices to the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any Borrower under Section 19.6 of the Loan DocumentsAgreement;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiiii) the unenforceability of all or any part of the Guaranteed Obligations Obligation against the Other BorrowerBorrower or Guarantor, whether because the Guaranteed Obligations exceed Obligation exceeds the amount permitted by law or violate violates any usury law, or because the act of creating the Guaranteed ObligationsObligation, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members persons creating same acted in excess of their authority, Borrower or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower Guarantor has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstanceotherwise, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed ObligationsObligation, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations)reason; or
(xivj) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other payment by Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment preference under any bankruptcy, insolvency or similar law, the bankruptcy laws or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such eventsomeone else. It is the intent of Guarantor and Lender that that, subject to the terms, conditions and limitations of this Guaranty, the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations Obligation by Guarantor under this Guaranty are fully and finally paid or defeasedperformed, and not subject to refund or disgorgement, the such obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for , other than a payment of any amount payable by the Other Borrower in full of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderLoan.
Appears in 1 contract
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Lenders' rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the Lenders, to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lenders and the Other Borrower, it being understood that Lender Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the other Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the other Lenders may have concerning the Other Borrower.
(xi) if for any reason any Lender is required to refund any payment by Borrower to any other party liable for the payment of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent to protect its interest in the Property generally the Other Mortgageany collateral, preserve the value of such Property any collateral or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the MortgageCredit Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra vires, or because the officers or members Persons creating same the Guaranxxxx Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent and the other Lenders.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to any Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by any such Lender or paid by any such Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by any such Lender and any reasonable attorneys' fees, costs and expenses paid or incurred by any such Lender in connection with any such event. It is the intent of Guarantor and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent, on behalf of the Lenders, shall be entitled to continue to hold this Guaranty in its possession for a period of one year from the date the Guaranteed Obligations are paid in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under any Note, the Other Borrower of the Guaranteed Obligations Credit Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent, on behalf of the Lenders.
(d) This Guaranty may not be changed orally and no obligation of the Guarantor can be released or waived by Administrative Agent, on behalf of the Lenders, except by a signed writing by an authorized officer of Administrative Agent. Guarantor hereby waives any rights it might have under C.R.S. ss.ss. 13-50-102 and 103.
Appears in 1 contract
Samples: Guaranty Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxix) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Inland Western Retail Real Estate Trust Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither LenderAdministrative Agent's nor Lenders' rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;
(vi) whether express or by operation of lawexcept as expressly provided for herein, any partial release of the liability of Guarantor hereunderhereunder (whether by operation of law or otherwise), or if one or more other guaranties are now or hereafter obtained by Lender Administrative Agent covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the Plans and other terms or aspects of construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent on behalf of the Lenders to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) except as expressly provided for herein, any failure of Lender Administrative Agent to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Administrative Agent and the Other Borrower, it being understood that Lender Administrative Agent shall not be required (other than as expressly provided herein) to give Guarantor any notice (other than as expressly provided herein) of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent shall have no duty to notify the Guarantor of .of any information which the Lender Administrative Agent or Lenders may have concerning the Other Borrower.
(xi) if for any reason Administrative Agent is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent on behalf of the Lenders to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim setoff or other right that Guarantor may at any time have against the Other Borrower, LenderLenders, Administrative Agent, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent; or
(xvi) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvii) [Reserved];
(xviii) Administrative Agent's enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(xix) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Interest Rate Protection Agreement or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents Lenders is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is Administrative Agent or Lenders are required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender Administrative Agent or Lenders shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender Administrative Agent or Lenders or paid by Lender Administrative Agent or Lenders to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender Administrative Agent or Lenders and any attorneys' fees, costs and expenses paid or incurred by Lender Administrative Agent or Lenders in connection with any such event. It is the intent of Guarantor and Lender Administrative Agent that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. .
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(d) Guarantor agrees that neither the Guarantor nor anyone claiming through or under the Guarantor shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in force, in order to prevent or hinder the enforcement or foreclosure of the Mortgage or the absolute sale of the Property or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereat, and the Guarantor, for themselves and all who may at any time claim through or under any of them, hereby waive the benefit of all such laws and any and all rights to have the assets comprising the Property marshalled upon any foreclosure of the Mortgage.
Appears in 1 contract
Samples: Construction Loan Agreement (FelCor Lodging Trust Inc)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's BG’s rights or remedies nor and all of Guarantor's ’s obligations under the terms of this Guaranty shall remain in full force and effect and shall not be released, diminished, impaired, reduced or affected by, or deemed to be satisfied by, nor shall Guarantor be exonerated, discharged or released (by virtue of any Law, arrangement or relationship) by, any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiia) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vib) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, Law or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligationsotherwise, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Subject Person or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations, or any limitation, discharge, cessation or partial release of the liability of Guarantor hereunder (other than discharge or release under the express provisions of this Guarantee, including by virtue of satisfaction of Guaranteed Obligations, under the express terms of the MITA, or by agreement of BG), or;
(viic) the deathbankruptcy, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower any Subject Person or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiid) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, amendment, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan DocumentsObligations, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, MITA or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender BG to the Other Borrowerany Subject Person, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixe) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or BG to take or prosecute (or in taking or prosecuting) any action in connection with for the collection of any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xf) if for any failure of Lender reason BG is required to notify Guarantor refund any payment by any Subject Person or any other party liable for the performance of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment all of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against pay the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required amount thereof to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documentssomeone else;
(xiig) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrowerany Subject Person, LenderBG, or any other partyPerson, whether or not arising in connection with this Guaranty, Guaranty or the Note, the Mortgage, or any other Loan DocumentMITA;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivh) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower any Subject Person or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by LenderBG;
(i) any absence of any notice to, or knowledge by, Guarantor, of the existence or occurrence of any of the matters or events set forth in the foregoing subsections (a) through (h);
(j) the failure to provide any notices or demands, whether of presentment, protest, dishonor or otherwise, other than (i) any notices and demands expressly set forth herein, and (ii) such notices or demands as may be required by applicable Law which cannot be waived; or
(k) any other circumstance that might otherwise constitute a defense available to, or a discharge of, a guarantor (except discharge or defenses under the express provisions of this Guarantee, including by virtue of satisfaction of Guaranteed Obligations, under the express terms of the MITA, or by other agreement of BG). In the event any payment to Lender performance by the Other Borrower any Subject Person or any other party under Person to BG in respect of the Other Note, the Other Mortgage or the other Loan Documents Guaranteed Obligations is held to constitute a preference, fraudulent transfer or other voidable payment performance under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender reason, BG is required to refund such any payment or pay the amount thereof to any other party, such payment performance by the Other Borrower such Subject Person or any such other party Person to Lender BG shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender BG of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender BG or paid by Lender BG to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender BG and any attorneys' ’ fees, costs and expenses paid or incurred by Lender BG in connection with any such event. It is In addition to the intent other matters set forth in this Section 3, until all Guaranteed Obligations have been performed in full, Guarantor hereby agrees not to assert any claim of subrogation with respect to the Guaranteed Obligations, or any right of contribution, reimbursement, indemnification or other rights of recovery against the Subject Persons in respect of the Guaranteed Obligations, provided that nothing herein shall prevent transfers of funds between the Subject Persons and Guarantor in the ordinary course of business. If any amount shall be paid to Guarantor in violation of the preceding sentence, such amount shall be held in trust for the benefit of BG and immediately turned over to BG, with any necessary endorsement, to be applied to the Guaranteed Obligations. Guarantor agrees that, as between Guarantor and Lender that the obligations and liabilities BG as of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until time, the Guaranteed Obligations are fully accrued as of such time may be declared to be due for purposes of Section 1 notwithstanding any stay, injunction or other prohibition preventing such declaration as against any Subject Person and finally paid that, in the event of such declaration, such Guaranteed Obligations (whether or defeasednot due by any Subject Person) shall forthwith become due by Guarantor for purposes of Section 1. Each failure by any Subject Person to perform any Guaranteed Obligations shall give rise to a separate cause of action herewith, and not subject to refund or disgorgement, the obligations and liabilities separate suits may be brought hereunder as each cause of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lenderaction arises.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Lenders' rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i1) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) any homestead exemption or any other exemption under applicable law;
(v5) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;
(vi6) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii7) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) 8) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the Lenders, to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix9) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x10) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lenders and the Other Borrower, it being understood that Lender Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the other Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the other Lenders may have concerning the Other Borrower.
(xi11) if for any reason any Lender is required to refund any payment by Borrower to any other party liable for the payment of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(12) the making of advances by Lender Administrative Agent to protect its interest in the Property generally the Other Mortgageany collateral, preserve the value of such Property any collateral or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii13) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the MortgageCredit Agreement, or any other Loan Document;
(xiii14) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv15) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent and the other Lenders.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to any Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by any such Lender or paid by any such Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by any such Lender and any reasonable attorneys' fees, costs and expenses paid or incurred by any such Lender in connection with any such event. It is the intent of Guarantor and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent, on behalf of the Lenders, shall be entitled to continue to hold this Guaranty in its possession for a period of one year from the date the Guaranteed Obligations are paid in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under any Note, the Other Borrower of the Guaranteed Obligations Credit Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent, on behalf of the Lenders.
(d) This Guaranty may not be changed orally and no obligation of the Guarantor can be released or waived by Administrative Agent, on behalf of the Lenders, except by a signed writing by an authorized officer of Administrative Agent. Guarantor hereby waives any rights it might have under C.R.S. xx.xx. 00-00-000 and 103.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's Lenders' rights or and remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective offollowing:
(ia) intentionally omitted;any limitation of liability or recourse in any other Loan Document:
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiib) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed ObligationsObligation;
(iv) any homestead exemption or any other exemption under applicable law;
(vc) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, impairment or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateralObligation;
(vid) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if there is more than one or more other guaranties are now or hereafter obtained by Lender covering all or any part person signing a guaranty of the Guaranteed ObligationsObligation, any the complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligationsthem hereunder;
(viie) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower Borrower, Guarantor or any other party at any time liable for the payment or performance of any or all of the Guaranteed ObligationsObligation, whether now existing or hereafter occurring;
(viiif) renewal, extension, modification or rearrangement of the payment or performance of any or all of the Guaranteed Obligation, either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted or given by Lenders to Borrower or any other Guarantor from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligationstime;
(ixg) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Lenders to enforce take or prosecute any action for the collection or enforcement of any of the Guaranteed Obligations, Obligation or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to upon any security for the Guaranteed Obligations, therefor or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xh) any failure of Lender Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, modification or assignment of the Guaranteed Obligations Obligation or any part thereof, or of any Loan Document, or of any release of or change in any security, security or of any other action taken or refrained from being taken by Lender Lenders against the Other Borrower or any security or other recourse, recourse or of any new agreement between Lender, Lenders and the Other Borrower, it being understood that Lender Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan DocumentsObligation;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiiii) the unenforceability of all or any part of the Guaranteed Obligations Obligation against the Other Borrower, whether because the Guaranteed Obligations exceed Obligation exceeds the amount permitted by law or violate violates any usury law, or because the act of creating the Guaranteed ObligationsObligation, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect theretothereto (other than payment and performance of the Indebtedness), or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstanceotherwise, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed ObligationsObligation, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations)reason; or
(xivj) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect payment by Borrower to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Lenders is held to constitute a preference, fraudulent transfer or other voidable payment preference under any bankruptcy, insolvency or similar law, the bankruptcy laws or if for any other reason Lender is Lenders are required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such eventsomeone else. It is the intent of Guarantor and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are Obligation is fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the such obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent and Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrowers under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Administrative Agent or any Lender against Guarantor, to the fullest extent permitted by Law;
(v) any homestead exemption or any other exemption under applicable lawLaw;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other any Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent or Lenders to the Other Borrower, Guarantor, and/or any Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Administrative Agent or any Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Administrative Agent or any Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Potential Default, or of any other action taken or refrained from being taken by Administrative Agent or any Lender against the Other any Borrower or any security or other recourse, or of any new agreement between Lenderor among Administrative Agent, any Lender and the Other any Borrower, it being understood that Lender Administrative Agent shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other each Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")any collateral, including, but not limited to, including any changes in the business or financial condition of the Other each Borrower or the Other Propertyany collateral, and the Guarantor acknowledges and agrees that the neither Administrative Agent nor any Lender shall have no any duty to notify the Guarantor of any information which the Administrative Agent or such Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property any Borrower or for the purpose of performing any term or covenant contained in any of the Loan Documentscollateral;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim set‑off or other right that Guarantor may at any time have against the Other any Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the Mortgage, Loan Agreement or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other any Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other any Borrower's ’s obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other any Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other any Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other any Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Administrative Agent or any Lender. , or any action taken or omitted by Administrative Agent or any Lender in any such proceedings, including any election to have Administrative Agent’s or such Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Administrative Agent or such Lender in any such proceedings or the taking and holding by Administrative Agent or such Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any of the Guaranteed Obligations;
(xvii) Administrative Agent or any Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(xviii) any liability, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other any Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other any Borrower or any other party to Administrative Agent or such Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or any Lender or paid by Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Administrative Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Administrative Agent or any Lender in connection with any such event. .
(c) It is the intent of Guarantor Guarantor, Administrative Agent and each Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Administrative Agent or any Lender to any Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Administrative Agent or any Lender from any Borrower, any other Person or any other source (other than from Guarantor pursuant to a demand by Administrative Agent hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Administrative Agent or any Lender. Administrative Agent shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Administrative Agent’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by any Borrower under any Note, the Other Borrower of the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(f) Guarantor further waives: (i) any defense to the recovery by Administrative Agent or Lenders against Guarantor of any deficiency or otherwise to the enforcement of this Guaranty or any security for this Guaranty based upon the election by Administrative Agent or Lenders of any remedy against Guarantor or Borrower, including the defense to enforcement of this Guaranty (the so-called “Gradsky” defense) which, absent this waiver, Guarantor would have by virtue of an election by Administrative Agent or Lenders to conduct a non-judicial foreclosure sale (also known as a “trustee’s sale”) of any real property security for the Indebtedness, it being understood by Guarantor that any such non-judicial foreclosure sale will destroy, by operation of California Code of Civil Procedure (“CCP”) Section 580d, all rights of any party to a deficiency judgment against Borrower and, as a consequence, will destroy all rights that Guarantor would otherwise have (including the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against Borrower; (ii) any defense or benefits that may be derived from CCP Sections 580a, 580b, 580d or 726, or comparable provisions of the laws of any other jurisdiction and all other anti-deficiency and one form of action defenses under the laws of California and any other jurisdiction; and (iii) any right to a fair value hearing under CCP Section 580a, or any other similar law, to determine the size of any deficiency owing (for which Guarantor would be liable hereunder) following a non-judicial foreclosure sale.
(g) Without limiting the foregoing or anything else contained in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. This means, among other things:
(i) That Administrative Agent or Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower; and
(ii) If Administrative Agent, for the benefit of Lenders, forecloses on any real property collateral pledged by Borrower: (A) the amount of the Guaranteed Obligations 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) Administrative Agent and/or Lenders may collect from Guarantor even if Administrative Agent, by foreclosing on the real property collateral for Lenders’ benefit, has destroyed any right Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d, or 726 of the CCP.
(h) Guarantor waives all rights and defenses arising out of an election of remedies by Administrative Agent or Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by operation of Section 580d of the CCP or otherwise.
(i) Guarantor waives Guarantor’s rights of subrogation and reimbursement, including (i) any defenses Guarantor may have by reason of an election of remedies by Administrative Agent or 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 anti-deficiency or other laws of California limiting or discharging Borrower’s obligations, including Sections 580a, 580b, 580d or 726 of the CCP.
(j) Guarantor waives any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the laws of any other jurisdiction and further waives all other suretyship defenses Guarantor would otherwise have under the laws of California or any other jurisdiction.
(k) No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor.
Appears in 1 contract
Samples: Guaranty Agreement (KBS Real Estate Investment Trust III, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent or Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any and all applicable statutes of limitations; all of which Guarantor hereby waives to the fullest extent permitted by law as a defense to any action or proceeding that may be brought by Administrative Agent or Lenders against Guarantor;
(iii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiiiv) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(ivv) any homestead exemption or any other exemption under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Administrative Agent or Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, death of Borrower or the appointment of a conservator for Borrower;
(ix) the insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, ; change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiix) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure depart from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent or Lenders to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixxi) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent or Lenders to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxii) any failure of Lender Administrative Agent or Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent or Lenders against the Other Borrower or any security or other recourse, or of any new agreement between Lender, or among Administrative Agent and/or Lenders and the Other Borrower, it being understood that neither Administrative Agent nor any Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent or Lenders may have concerning the Other Borrower.;
(xixiii) whether for any reason Administrative Agent or any Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations, or to pay the amount thereof to someone else;
(xiv) the making of advances by Lender Administrative Agent or Lenders to protect its their interest in the Property generally the Other MortgageProperty, to preserve the value of such the Property or for the purpose to facilitate performance of performing any term or covenant contained in any of the Loan Documents;
(xiixv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent or any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixvi) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess outside the scope of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon on this Guaranty regardless of whether the Other Borrower or any other Person be found not liable on for the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxvii) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Administrative Agent or any Lender. ; or
(xviii) any early termination of any of the Guaranteed Obligations;
(xix) Administrative Agent’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis;
(xx) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Interest Rate Protection Agreement or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any mariner whatsoever; or
(xxi) any other condition, event, omission, action or inaction that would in the absence of this Section 3(a) result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Administrative Agent or such Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Administrative Agent or any Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or any Lender or paid by Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Administrative Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Administrative Agent or any Lender in connection with any such event. It is the intent of Guarantor Guarantor, Administrative Agent and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent shall be entitled to continue to hold this Guaranty in its possession for the benefit of Lenders for a period of one year from the date the Guaranteed Obligations are paid in fall and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Administrative Agent or Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent or Lenders.
(d) Guarantor further waives: (i) any defense to the recovery by Administrative Agent or Lenders against Guarantor of any deficiency or otherwise to the enforcement of this Guaranty or any security for this Guaranty based upon the election by Administrative Agent or Lenders of any remedy against Guarantor or Borrower, including the defense to enforcement of this Guaranty (the so-called “Gradsky” defense) which, absent this waiver, Guarantor would have by virtue of an election by Administrative Agent or Lenders to conduct a non-judicial foreclosure sale (also known as a “trustee’s sale”) of any real property security for the Indebtedness, it being understood by Guarantor that any such non-judicial foreclosure sale will destroy, by operation of California Code of Civil Procedure (“CCP”) Section 580d, all rights of any party to a deficiency judgment against Borrower and, as a consequence, will destroy all rights that Guarantor would otherwise have (including the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against Borrower; (ii) any defense or benefits that may be derived from CCP Sections 580a, 580b, 580d or 726, or comparable provisions of the laws of any other jurisdiction and all other anti deficiency and one form of action defenses under the laws of California and any other jurisdiction; and (iii) any right to a fair value hearing under CCP Section 580a, or any other similar law, to determine the size of any deficiency owing (for which Guarantor would be liable hereunder) following a non-judicial foreclosure sale.
(e) Without limiting the foregoing or anything else contained in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. This means, among other things:
(i) That Administrative Agent or Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower; and
(ii) If Administrative Agent, for the benefit of Lenders, forecloses on any real property collateral pledged by Borrower: (A) the amount of the Guaranteed Obligations 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) Administrative Agent and/or Lenders may collect from Guarantor even if Administrative Agent, by foreclosing on the real property collateral for Lenders’ benefit, has destroyed any right Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d, or 726 of the CCP.
(f) Guarantor waives all rights and defenses arising out of an election of remedies by Administrative Agent or Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by operation of Section 580d of the CCP or otherwise.
(g) Guarantor waives Guarantor’s rights of subrogation and reimbursement, including (i) any defenses Guarantor may have by reason of an election of remedies by Administrative Agent or 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 anti-deficiency or other laws of California limiting or discharging Borrower’s obligations, including Sections 580a, 580b, 580d or 726 of the CCP.
(h) Guarantor waives any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the laws of any other jurisdiction and further waives all other suretyship defenses Guarantor would otherwise have under the laws of California or any other jurisdiction.
(i) No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Agent’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i1) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) the operation of any statutes of limitation or other laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Agent against Guarantor, to the fullest extent permitted by law;
(5) any homestead exemption or any other exemption that is waivable under applicable law;
(v6) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi7) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Agent covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, (except to the extent expressly so released) or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) 8) the death, insolvency, bankruptcy, disability, dissolution, liquidation, terminationtermination (other than a discharge as a result of a payment in full of the Guaranteed Obligations and the termination of all Commitments under the Credit Agreement), receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii9) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, including without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Agent or any Lender to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix10) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Agent to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x11) any failure of Lender Agent to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender Agent against the Other Borrower or any security or other recourse, or of any new agreement between LenderAgent, any Lender and the Other Borrower, it being understood that Lender Agent shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Agent shall have no duty to notify the Guarantor of any information which the Agent or any Lender may have concerning the Other Borrower.;
(xi12) if for any reason Agent or any Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(13) the making of advances by Lender Agent to protect its interest in the Property generally the Other Mortgageany collateral, preserve the value of such Property any collateral or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii14) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Credit Agreement or any other Loan Document;
(xiii15) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect theretothereto (other than a defense of payment and performance in full), or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstancecircumstance (other than a discharge by reason of payment and performance in full of the Guaranteed Obligations and the termination of all Commitments under the Credit Agreement), it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv16) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Agent or any Lender. , or any action taken or omitted by Agent or any Lender in any such proceedings, including any election to have Agent’s or any Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Agent or any Lender in any such proceedings or the taking and holding by Agent or any Lender of any security for any such extension of credit;
(17) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(18) any early termination of any of the Guaranteed Obligations (other than due to payment and performance in full and termination of all Commitments under the Credit Agreement); or
(19) Agent’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Agent of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Agent or any Lender or paid by Agent or any Lender to another party Borrower or any other Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Agent or any Lender in connection with any such event. .
(c) It is the intent of Guarantor and Agent and each Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Agent shall be entitled to continue to hold this Guaranty in its possession for a period of ninety one (91) days from the date the Guaranteed Obligations are paid and performed in full and all Commitments are terminated under the Credit Agreement, and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Agent hereunder.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Agent or any Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Agent or any Lender from Borrower, any other Person or any other source (other than from Guarantor pursuant to a demand by Agent hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Agent or any Lender. Agent shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Agent’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Notes, the Guaranteed Obligations Credit Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAgent.
Appears in 1 contract
Samples: Guaranty Agreement (Ares Commercial Real Estate Corp)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, Obligations or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Inland Western Retail Real Estate Trust Inc)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's EXCO’s rights or remedies nor and all of Guarantor's ’s obligations under the terms of this Guaranty shall remain in full force and effect and shall not be released, diminished, impaired, reduced or affected by, or deemed to be satisfied by, nor shall Guarantor be exonerated, discharged or released (by virtue of any Law, arrangement or relationship) by, any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiia) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vib) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, Law or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligationsotherwise, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Subject Person or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations, or any limitation, discharge, cessation or partial release of the liability of Guarantor hereunder (other than discharge or release under the express provisions of this Guarantee, including by virtue of satisfaction of Guaranteed Obligations, under the express terms of the MITA and JDA, or by agreement of EXCO);
(viic) the deathbankruptcy, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower any Subject Person or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiid) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, amendment, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan DocumentsObligations, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, Definitive Agreements or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender EXCO to the Other Borrowerany Subject Person, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixe) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or EXCO to take or prosecute (or in taking or prosecuting) any action in connection with for the collection of any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xf) if for any failure of Lender reason EXCO is required to notify Guarantor refund any payment by any Subject Person or any other party liable for the payment of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment all of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against pay the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required amount thereof to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documentssomeone else;
(xiig) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrowerany Subject Person, LenderEXCO, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Guaranty or any other Loan Documentof the Definitive Agreements;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivh) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower any Subject Person or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by LenderEXCO;
(i) any absence of any notice to, or knowledge by, Guarantor, of the existence or occurrence of any of the matters or events set forth in the foregoing subsections (a) through (h);
(j) the failure to provide any notices or demands, whether of presentment, protest, dishonor or otherwise, other than (i) any notices and demands expressly set forth herein, and (ii) such notices or demands as may be required by applicable Law which cannot be waived; or
(k) any other circumstance that might otherwise constitute a defense available to, or a discharge of, a guarantor (except discharge or defenses under the express provisions of this Guarantee, including by virtue of satisfaction of Guaranteed Obligations, under the express terms of the MITA and JDA, or by other agreement of EXCO). In the event any payment to Lender by the Other Borrower any Subject Person or any other party under Person to EXCO in respect of the Other Note, the Other Mortgage or the other Loan Documents Guaranteed Obligations is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender reason, EXCO is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower such Subject Person or any such other party Person to Lender EXCO shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender EXCO of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender EXCO or paid by Lender EXCO to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender EXCO and any attorneys' ’ fees, costs and expenses paid or incurred by Lender EXCO in connection with any such event. It is In addition to the intent other matters set forth in this Section 3, until all Guaranteed Obligations have been paid in full, Guarantor hereby agrees not to assert any claim of subrogation with respect to the Guaranteed Obligations, or any right of contribution, reimbursement, indemnification or other rights of recovery against the Subject Persons in respect of the Guaranteed Obligations, provided that nothing herein shall prevent transfers of funds between the Subject Persons and Guarantor in the ordinary course of business. If any amount shall be paid to Guarantor in violation of the preceding sentence, such amount shall be held in trust for the benefit of EXCO and immediately turned over to EXCO, with any necessary endorsement, to be applied to the Guaranteed Obligations. Guarantor agrees that, as between Guarantor and Lender that the obligations and liabilities EXCO as of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until time, the Guaranteed Obligations are fully accrued as of such time may be declared to be forthwith due and finally paid payable for purposes of Section 1 notwithstanding any stay, injunction or defeased, other prohibition preventing such declaration as against any Subject Person and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or releasedthat, in whole the event of such declaration, such Guaranteed Obligations (whether or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount not due and payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts Subject Person) shall nonetheless be forthwith become due and payable by Guarantor on demand for purposes of Section 1. Each failure by Lenderany Subject Person to pay any Guaranteed Obligations shall give rise to a separate cause of action herewith, and separate suits may be brought hereunder as each cause of action arises.
Appears in 1 contract
Samples: Guaranty (Exco Resources Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent or Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall shall~ be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any and all applicable statutes of limitations, all of which Guarantor hereby waives to the fullest extent permitted by law as a defense to any action or proceeding that may be brought by Administrative Agent or Lenders against Guarantor;
(iii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiiiv) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(ivv) any homestead exemption or any other exemption under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, impairment or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Administrative Agent or Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, death of Borrower or the appointment of a conservator for Borrower;
(ix) the insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiix) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure depart from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent or Lenders to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixxi) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent or Lenders to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefore, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefore, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner collateral any collateral now or hereafter securing any or all of the Guaranteed Obligationsguaranty obligations;
(xxii) any failure of Lender Administrative Agent or Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent or Lenders against the Other Borrower or any security or other recourse, or of any new agreement between Lender, or among Administrative Agent and/or Lenders and the Other Borrower, it being understood that neither Administrative Agent nor any Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent or Lenders may have concerning the Other Borrower.;
(xixiii) whether for any reason Administrative Agent or any Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations, or to pay the amount thereof to someone else;
(xiv) the making of advances by Lender Administrative Agent or Lenders to protect its their interest in the Property generally the Other MortgageProperty, to preserve the value of such the Property or for the purpose to facilitate performance of performing any term or covenant contained in any of the Loan Documents;
(xiixv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, Administrative Agent or any Lender or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixvi) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, thereof is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess outside the scope of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon on this Guaranty regardless of whether the Other Borrower or any other Person be found not liable on for the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxvii) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Administrative Agent or any Lender. ; (xviii) any early termination of any of the Guaranteed Obligations;
(xix) Administrative Agent’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis;
(xx) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Interest Rate Protection Agreement or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever; or
(xxi) any other condition, event, omission, action or inaction that would in the absence of this Section 3(a) result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Administrative Agent or such Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Administrative Agent or any Lender of this Guaranty or of Guarantor), as the case may bemaybe, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or any Lender or paid by Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Administrative Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Administrative Agent or any Lender in connection with any such event. It is the intent of Guarantor Guarantor, Administrative Agent and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.that
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither LenderGMAC-CM's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;:
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender GMAC-CM covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Mortgagor or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower Mortgagor or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor, except as required under Section 4(d) above: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes in the final plans and specifications and other terms or aspects of construction of the improvements at the Mortgaged Property) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be 13 granted from time to time by Lender GMAC-CM to the Other BorrowerMortgagor, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;:
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender GMAC-CM to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;; provided, however, GMAC-CM shall use reasonable efforts, taking into account all facts and circumstances, to recover any Loss amount and to remit the same to Guarantor.
(x) any failure of Lender GMAC-CM to notify Guarantor Guarantor, to the extent required under Section 4(d) above, of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender GMAC-CM against the Other Borrower Mortgagor or any security or other recourse, or of any new agreement between Lender, GMAC-CM and the Other BorrowerMortgagor, it being understood that Lender GMAC-CM shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Mortgagor, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyMortgagor, and the Guarantor acknowledges and agrees that the Lender GMAC-CM shall have no duty to notify the Guarantor of any information which the Lender GMAC-CM may have concerning the Other BorrowerMortgagor.
(xi) if any requirement for any reason that GMAC-CM is required to refund any payment by Mortgagor to any other party liable for the payment of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender GMAC-CM to protect its interest in the Property generally the Other MortgageMortgaged Property, preserve the value of such the Mortgaged Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other BorrowerMortgagor, LenderGMAC-CM, or any other partyPerson, whether or not arising in connection with this Guaranty, the Mortgage Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other BorrowerMortgagor, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra virex, or xx because the officers or members Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower Mortgagor has any valid defense, claim or offset with respect thereto, or because the Other BorrowerMortgagor's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower Mortgagor or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower Mortgagor or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivb) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower Mortgagor, Guarantor or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to GMAC-CM is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender GMAC-CM is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower Mortgagor, Guarantor or any other party Person to Lender GMAC-CM shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender GMAC-CM of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender GMAC-CM or paid by Lender GMAC-CM to Guarantor or another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender GMAC-CM and any attorneys' fees, costs and expenses paid or incurred by Lender GMAC-CM in connection with any such event. It is the intent of Guarantor and Lender GMAC-CM that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. GMAC-CM shall be entitled to continue to hold this Guaranty in its possession for so long as may be necessary (including any bankruptcy "preference" periods following the satisfaction of all Guaranteed Obligations) to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of GMAC-CM hereunder.
(c) If acceleration of the time for payment of any amount payable by Mortgagor under the Other Borrower of Mortgage Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderGMAC-CM.
Appears in 1 contract
Samples: Guaranty Agreement (Doubletree Corp)
Certain Agreements and Waivers by Guarantor. Guarantor hereby guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Guaranteed Agreements, regardless of any law, regulation, or order of any governmental authority now or hereafter in effect. Xxxxxxxxx agrees that neither Lender's Guaranteed Party’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by, and Guarantor hereby waives any defenses to enforcement it may have (now or in the future) by any one or more of the following events, actions, factsreach of, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, the following: any illegality or lack of validity or enforceability of, or defect or deficiency in, any Obligation or any Agreement or any related agreement or instrument for any reason or circumstance, including, without limitation, because Market Participant has any valid defense, claim or offset with respect thereto or because Market Participant’s obligation ceases to exist by operation of law; and Guarantor acknowledges and agrees that Guarantor’s liability under this Guaranty is not conditioned upon the legality, validity or enforceability of the Agreements (or any one of them) or the Obligations and that Guarantor shall remain liable hereon regardless of whether Market Participant or any other Person be found not liable on the Obligations, or any part thereof, for any reason (and regardless of any joinder of Market Participant or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations;
(iv) any homestead exemption ); the lack of legal existence of the Market Participant or any other exemption Person or lack of legal obligation to discharge all or any portion of the Obligations by the Market Participant or any other Person for any reason whatsoever, including, without limitation, in any insolvency, bankruptcy or reorganization of any Person; either with or without notice to or consent of Guarantor, any renewal, extension, modification, supplement, subordination or rearrangement of the terms of any or all of the Obligations and/or any of the Agreements, including material alterations of the terms of payment (including changes in due date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Agreements or any other guaranty of any or all of the Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Guaranteed Party to Market Participant or any other Person at any time liable for the payment or performance of any or all of the Obligations under applicable law;
(v) any of the Agreements; any taking, accepting, substitution, release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) ; any taking, accepting, impairment, amendment, waiver, or other modification of any guaranty, for all or any portion of the Obligations or the failure of any other Person to execute or deliver this Guaranty or any other guaranty or agreement, or the release or reduction of liability of any Person or surety, with respect to the Obligations; any default, failure, or delay, willful or otherwise, in the performance of all or any portion of the Obligations; whether express or by operation of law, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released by Guaranteed Party in writing) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Market Participant or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
; any change, restructuring, or termination of the corporate structure, ownership, or existence of the Market Participant, Guarantor or any Other Guarantor (viias defined below) the deathor any of their subsidiaries or affiliates, or any (voluntary or involuntary) receivership, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, mergerassignment for the benefit of creditors, consolidationor other similar proceeding affecting the Market Participant, change of form, structure any Other Guarantor or ownership, sale of all their respective assets, or lack of corporate, partnership any resulting release or other power of the Other Borrower or any other party at any time liable for the payment or performance discharge of any or all Obligation; any failure of the Guaranteed Obligations;
(viii) either with or without notice Party to or consent notify Guarantor of Guarantor: any creation, renewal, extension, modification rearrangement, modification, supplement, subordination, or rearrangement assignment of the terms Obligations or any part thereof, or of any Agreement or all other guaranty, or of any release of or change in any security, or of the occurrence or existence of any default, or of any other action taken or refrained from being taken by Guaranteed Party against Market Participant, any Other Guarantor or any security or other recourse, or of any new agreement between Guaranteed Party and Market Participant or any Other Guarantor, it being understood that Guaranteed Party shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Obligations and/or any of the Loan Documents, (including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(sGuaranteed Obligations)) or performance , the Agreements or any other terms thereofguaranty, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding Market Participant and any Other Guarantor, including any changes in the business or financial condition of Market Participant, and Guarantor acknowledges and agrees that Guaranteed Party shall have no duty to notify Guarantor of any information which Guaranteed Party may have concerning Market Participant or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) ; any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Guaranteed Party to take, exercise, enforce of or prosecute (or in taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action with respect to any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take take, exercise, enforce or prosecute (or in taking taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action in connection with any Loan DocumentAgreement, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Obligations; any waiver by Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor Party of any creation, renewal, extension, rearrangement, modification, supplement, subordination, right or assignment remedy; or any waiver by Guaranteed Party of the Guaranteed Obligations or any part thereof, or Market Participant’s performance of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) Obligations or the Market Participant’s or any Other Guarantor’s default under any of the Agreements or Other Guarantor under any other guaranty; the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Guaranteed Party, Market Participant, any Other Borrower, Lender, Guarantor or any other partyPerson, whether or not arising in connection with this Guaranty, any of the Note, the Mortgage, Agreements or any other Loan Document;
guaranty; any transfer, assignment or mortgaging by the Market Participant or Guaranteed Party of any interest in the Agreements (xiii) the unenforceability of all or any part one of the Guaranteed Obligations against the Other Borrowerthem), whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower this Guaranty or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations)guaranty; or
(xiv) any order, ruling ruling, or plan of reorganization or liquidation emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower Market Participant or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In Guaranteed Party, or any action taken or omitted by Guaranteed Party in any such proceedings, including any election to have Guaranteed Party’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Guaranteed Party in any such proceedings or the event taking and holding by Guaranteed Party of any payment to Lender by the Other Borrower security for any such extension of credit; or any other party under the Other Notecircumstance (including, the Other Mortgage or the other Loan Documents is held to constitute a preferencewithout limitation, fraudulent transfer any statute of limitations or other voidable payment under laws regarding limitations of actions) or any bankruptcy, insolvency or similar lawexistence of, or if for reliance on, any other reason Lender is required to refund such payment representation by Guaranteed Party that might vary the risk of any Guarantor or pay the amount thereof to any other partyotherwise operate as a defense available to, such payment by the Other Borrower or a legal or equitable discharge of, Market Participant or any other party to Lender shall not constitute a release of Other Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such eventsurety. It is the intent of Guarantor and Lender Guaranteed Party that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable, unconditional and unconditional continuing under any and all circumstances and that until the Guaranteed Obligations are fully and finally indefeasibly paid or defeasedin full, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any of the above events, actions, facts or circumstance or by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the Lenders’ rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable lawLaw;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender the Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Borrowers or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower Borrowers or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the Lenders, to the Other BorrowerBorrowers, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower Borrowers or any security or other recourse, or of any new agreement between LenderAdministrative Agent, for the Lenders, and the Other BorrowerBorrowers, it being understood that Lender unless otherwise expressly provided for in this Guaranty, the Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrowers, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrowers, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the Lenders may have concerning the Other BorrowerBorrowers.
(xi) if for any reason any Lender is required to refund any payment by Borrowers to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent, on behalf of the Lenders, to protect its the interest of the Lenders in the Property generally the Other MortgageProperty, preserve the value of such Property the Property, or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other BorrowerBorrowers, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against all or any of the Other BorrowerBorrowers, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other such Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other such Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other such Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower Borrowers or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent and the Lenders.
(b) In the event any payment to Lender by the Other any Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower Borrowers or any other party to any Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender the Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by any such Lender or paid by any such Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by any such Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender the Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent, on behalf of the Lenders, shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Loan Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of the Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrowers under the Other Borrower Note, the Loan Agreement, or any other Loan Document that constitutes any of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on within 10 days after written demand therefor is given by LenderAdministrative Agent to Guarantor as provided in Section 16 of this Guaranty.
Appears in 1 contract
Samples: Guaranty Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Certain Agreements and Waivers by Guarantor. (a) The Guarantor hereby agrees that neither Lender's the Administrative Agent’s rights or remedies nor the Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one (1) or more of the following events, actions, facts, facts or circumstances, and the liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by the Administrative Agent against the Guarantor, to the fullest extent permitted by Law;
(v) any homestead exemption or any other exemption under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, impairment or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of the Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of law, any partial release of the liability of the Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender the Administrative Agent covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership partnership, limited liability company or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of the Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, termination or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, forbearance or compromise that may be granted from time to time by Lender the Administrative Agent to the Other Borrower, Guarantor, the Guarantor and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, failure or refusal of Lender the Administrative Agent to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Lender the Administrative Agent to notify the Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, subordination or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender the Administrative Agent against the Other Borrower or any security or other recourse, or of any new agreement between Lender, the Administrative Agent on behalf of the Lenders and the Other Borrower, it being understood that Lender the Administrative Agent shall not be required to give the Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice the Guarantor may have otherwise had being hereby waived by the Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that neither the Administrative Agent nor any Lender shall have no any duty to notify the Guarantor of any information which the Administrative Agent or any Lender may have concerning the Other Borrower.;
(xixii) if for any reason the Administrative Agent or any Lender is required to refund any payment by the Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xiii) the making of advances by the Administrative Agent or any Lender to protect its or their interest in the Property generally the Other Mortgageany Borrowing Base Property, preserve the value of such any Borrowing Base Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that the Guarantor may at any time have against the Other Borrower, Lenderthe Administrative Agent, any Lender or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Credit Agreement or any other Loan Document;
(xiiixv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that the Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other the Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxvi) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, composition or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. the Administrative Agent, or any action taken or omitted by the Administrative Agent in any such proceedings, including any election to have the Administrative Agent’s claim allowed as being secured, partially secured or unsecured, any extension of credit by the Administrative Agent in any such proceedings or the taking and holding by the Administrative Agent of any security for any such extension of credit;
(xvii) any other conditions, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xviii) any early termination of any of the Guaranteed Obligations;
(xix) the Administrative Agent’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis;
(xx) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of the Borrower thereunder or any limitation on the method or terms of payment thereunder which may now hereafter be caused or imposed in any manner whatsoever; or
(xxi) any rights it may have under the Illinois Sureties Act, 740 ILCS 155/1 et seq.
(b) In the event any payment to Lender by the Other any Borrower or any other party under Person to the Other Note, the Other Mortgage Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason the Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party Person to the Administrative Agent or any Lender shall not constitute a release of the Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender the Administrative Agent of this Guaranty or of the Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by the Administrative Agent or any Lender or paid by the Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by the Administrative Agent or any Lender and any reasonable attorneys' ’ fees, costs and expenses paid or actually incurred by the Administrative Agent or any Lender in connection with any such event. It is the intent of Guarantor the Guarantor, the Administrative Agent and Lender the Lenders that the obligations and liabilities of the Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of the Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. The Administrative Agent shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Environmental Agreement shall accrue, or (ii) a period of one (1) year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of the Guarantor hereunder and/or to exercise any right or remedy of the Administrative Agent hereunder.
(c) The Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by the Administrative Agent or any Lender to the Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by the Administrative Agent or any Lender from the Borrower, any other Person or any other source (other than from the Guarantor pursuant to a demand by the Administrative Agent hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind the Guarantor to the extent of any Guaranteed Obligations that may remain owing to the Administrative Agent and the Lenders. The Administrative Agent shall have the right to apply any sums paid by the Guarantor to any portion of the Loan in the Administrative Agent’s sole and absolute discretion.
(d) If acceleration of the time for payment of any amount payable by the Other Borrower of under the Guaranteed Obligations Note, the Credit Agreement, any Swap Contract or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by the Guarantor on demand by Lenderthe Administrative Agent.
Appears in 1 contract
Samples: Guaranty Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Guarantor specifically waives the benefits of T.C.A. 00-00-000, as amended, and any amendments thereto or similar statutes or rules of law. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Inland Western Retail Real Estate Trust Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of any or all of the Borrowers under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) Intentionally Omitted;
(v) any homestead exemption or any other exemption under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement all of the Other Borrower Borrowers or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of any or all of the Other Borrower Borrowers or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, including without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to the construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to any or all of the Other Borrower, Guarantor, and/or Borrowers or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender against any or all of the Other Borrower Borrowers or any security or other recourse, or of any new agreement between Lender, Lender and any or all of the Other BorrowerBorrowers, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding any or all of the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrowers, including, but not limited to, any changes in the business or financial condition of any or all of the Other Borrower or the Other PropertyBorrowers, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning any or all of the Other Borrower.Borrowers;
(xixii) if for any reason Lender is required to refund any payment by any or all of the Borrowers to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xiii) the making of advances by Lender to protect its interest in any or all of the Property generally the Other MortgageEligible Properties, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against any or all of the Other BorrowerBorrowers, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, the Environmental Agreements or any other Loan Document, provided nothing herein shall prohibit Guarantor from raising any mandatory counterclaim in any action brought by Lender to enforce this Guaranty;
(xiiixv) the unenforceability of all or any part of the Guaranteed Obligations against any or all of the Other BorrowerBorrowers, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any or all of the Other Borrower Borrowers has any valid defense, claim or offset with respect thereto, or because any or all of the Other Borrower's Borrowers’ obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether any or all of the Other Borrower Borrowers or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower any or all of the Borrowers or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxvi) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to any or all of the Other Borrower Borrowers or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xvii) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xviii) any early termination of any of the Guaranteed Obligations;
(xix) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(xx) any liability, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of any or all of the Borrowers thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by any or all of the Other Borrower Borrowers or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by any or all of the Other Borrower Borrowers or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgementthis Guaranty terminates in accordance with Section 18 hereof, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Without extending the term of this Guaranty pursuant to Section 18 hereof, Lender shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Environmental Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lender hereunder.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to any or all of the Borrowers in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Lender from any or all of the Borrowers, any other Person or any other source (other than from Guarantor pursuant to a demand by Lender hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Lender’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by the Other Borrower any or all of the Guaranteed Obligations Borrowers under the Note, the Loan Agreement, any other Loan Document, or any Swap Contract is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Resource Real Estate Opportunity REIT, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent and Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i1) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) any homestead exemption or any other exemption that is waivable under applicable law;
(v5) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi6) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Administrative Agent and/or Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii7) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) 8) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent and/or Lenders to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix9) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent and/or Lenders to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x10) any failure of Lender Administrative Agent and/or Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent and/or Lenders against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Administrative Agent and/or Lenders and the Other Borrower, it being understood that Lender Administrative Agent and/or Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and/or Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and/or Lenders may have concerning the Other Borrower.;
(xi11) if for any reason Administrative Agent and/or Lenders is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(12) the making of advances by Lender Administrative Agent and/or Lenders to protect its their interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii13) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiii14) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv15) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. ; or
(16) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(17) any early termination of any of the Guaranteed Obligations;
(18) Administrative Agent’s and/or Lenders’ enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(19) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Administrative Agent and/or Lenders is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender Administrative Agent and/or Lenders is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender Administrative Agent and/or Lenders shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent and/or Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender Administrative Agent and/or Lenders or paid by Lender Administrative Agent and/or Lenders to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender Administrative Agent and/or Lenders and any attorneys' ’ fees, costs and expenses paid or incurred by Lender Administrative Agent and/or Lenders in connection with any such event. It is the intent of Guarantor Guarantor, Administrative Agent and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent and/or Lenders shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Environmental Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Administrative Agent and/or Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, any Swap Contract or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent and/or Lenders.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent or Lenders nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any and all applicable statutes of limitations, all of which Guarantor hereby waives to the fullest extent permitted by law as a defense to any action or proceeding that may be brought by Administrative Agent or Lenders against Guarantor;
(iii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiiiv) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(ivv) any homestead exemption or any other exemption under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Administrative Agent or Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, death of Borrower or the appointment of a conservator for Borrower;
(ix) the insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiix) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure depart from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent or Lenders to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixxi) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent or Lenders to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxii) any failure of Lender Administrative Agent or Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent or Lenders against the Other Borrower or any security or other recourse, or of any new agreement between Lender, or among Administrative Agent and/or Lenders and the Other Borrower, it being understood that neither Administrative Agent nor any Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent or Lenders may have concerning the Other Borrower.;
(xixiii) whether for any reason Administrative Agent or any Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations, or to pay the amount thereof to someone else;
(xiv) the making of advances by Lender Administrative Agent or Lenders to protect its their interest in the Property generally the Other MortgageProperty, to preserve the value of such the Property or for the purpose to facilitate performance of performing any term or covenant contained in any of the Loan Documents;
(xiixv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent or any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixvi) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess outside the scope of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon on this Guaranty regardless of whether the Other Borrower or any other Person be found not liable on for the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xivxvii) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Administrative Agent or any Lender. ; or
(xviii) any early termination of any of the Guaranteed Obligations;
(xix) Administrative Agent’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis;
(xx) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Interest Rate Protection Agreement or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever; or
(xxi) any other condition, event, omission, action or inaction that would in the absence of this Section 3(a) result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage Person to Administrative Agent or the other Loan Documents any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Administrative Agent or any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Administrative Agent or such Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Administrative Agent or any Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent or any Lender or paid by Administrative Agent or any Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Administrative Agent or any Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Administrative Agent or any Lender in connection with any such event. It is the intent of Guarantor Guarantor, Administrative Agent and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent shall be entitled to continue to hold this Guaranty in its possession for the benefit of Lenders for a period of one year from the date the Guaranteed Obligations are paid in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Administrative Agent or Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent or Lenders.
(d) Guarantor further waives: (i) any defense to the recovery by Administrative Agent or Lenders against Guarantor of any deficiency or otherwise to the enforcement of this Guaranty or any security for this Guaranty based upon the election by Administrative Agent or Lenders of any remedy against Guarantor or Borrower, including the defense to enforcement of this Guaranty (the so-called “Gradsky” defense) which, absent this waiver, Guarantor would have by virtue of an election by Administrative Agent or Lenders to conduct a non-judicial foreclosure sale (also known as a “trustee’s sale”) of any real property security for the Indebtedness, it being understood by Guarantor that any such non-judicial foreclosure sale will destroy, by operation of California Code of Civil Procedure (“CCP”) Section 580d, all rights of any party to a deficiency judgment against Borrower and, as a consequence, will destroy all rights that Guarantor would otherwise have (including the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against Borrower; (ii) any defense or benefits that may be derived from CCP Sections 580a, 580b, 580d or 726, or comparable provisions of the laws of any other jurisdiction and all other anti- deficiency and one form of action defenses under the laws of California and any other jurisdiction; and (iii) any right to a fair value hearing under CCP Section 580a, or any other similar law, to determine the size of any deficiency owing (for which Guarantor would be liable hereunder) following a non-judicial foreclosure sale.
(e) Without limiting the foregoing or anything else contained in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. This means, among other things:
(i) That Administrative Agent or Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower; and
(ii) If Administrative Agent, for the benefit of Lenders, forecloses on any real property collateral pledged by Borrower: (A) the amount of the Guaranteed Obligations 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) Administrative Agent and/or Lenders may collect from Guarantor even if Administrative Agent, by foreclosing on the real property collateral for Lenders’ benefit, has destroyed any right Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses that Guarantor may have because the Guaranteed Obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d, or 726 of the CCP.
(f) Guarantor waives all rights and defenses arising out of an election of remedies by Administrative Agent or Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by operation of Section 580d of the CCP or otherwise.
(g) Guarantor waives Guarantor’s rights of subrogation and reimbursement, including (i) any defenses Guarantor may have by reason of an election of remedies by Administrative Agent or 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 anti-deficiency or other laws of California limiting or discharging Borrower’s obligations, including Sections 580a, 580b, 580d or 726 of the CCP.
(h) Guarantor waives any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the laws of any other jurisdiction and further waives all other suretyship defenses Guarantor would otherwise have under the laws of California or any other jurisdiction.
(i) No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's rights or and remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective offollowing:
(ia) intentionally omittedany limitation of liability or recourse in any other Loan Document;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iiib) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed ObligationsObligation;
(iv) any homestead exemption or any other exemption under applicable law;
(vc) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, impairment or loss of, or any failure to create or perfect perfect, any lien or security interest with respect to, or to any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateralObligation;
(vid) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if there is more than one or more other guaranties are now or hereafter obtained by Lender covering all or any part of person signing this Guaranty, the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligationsthem hereunder;
(viie) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of formform and/or name, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of Borrower, any of the Other Borrower undersigned, or any other party at any time liable for the payment or performance of any or all of the Guaranteed ObligationsObligation, whether now existing or hereafter occurring;
(viiif) renewal, extension, modification or rearrangement of the payment or performance of any or all of the Guaranteed Obligation, either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted or given by Lender to Borrower or Guarantor from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligationstime;
(ixg) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute any action for the collection or enforcement of any of the Guaranteed Obligations, Obligation or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to upon any security for the Guaranteed Obligations, therefor or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xh) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, modification or assignment of the Guaranteed Obligations Obligation or any part thereof, or of any Loan Document, or of any release of or change in any security, security or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, recourse or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan DocumentsObligation;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiiii) the unenforceability of all or any part of the Guaranteed Obligations Obligation against the Other Borrower, whether because the Guaranteed Obligations exceed Obligation exceeds the amount permitted by law or violate violates any usury law, or because the act of creating the Guaranteed ObligationsObligation, or any part thereof, is ULTRA XXXXXultra virex, or because the xxe officers or members persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstanceotherwise, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed ObligationsObligation, or any part thereof, for any reason reason; or GUARANTY AGREEMENT (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
CANDLEWOOD WICHITA NORTHEAST-CANDLEWOOD, INC.) PAGE 2 3 (xivj) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other payment by Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment preference under any bankruptcy, insolvency or similar law, the bankruptcy laws or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such eventsomeone else. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations Obligation or all amounts required to be paid by Guarantor under this Guaranty are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the such obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Lenders’ rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the other Lenders, to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender unless otherwise expressly provided for in this Guaranty, Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the other Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the other Lenders may have concerning the Other Borrower.
(xi) if for any reason any Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(xii) the making of advances by Lender Administrative Agent to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xiixiii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiiixiv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent and the other Lenders.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to any Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by any such Lender or paid by any such Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by any such Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent, on behalf of the Lenders, shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Loan Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower Note, the Loan Agreement, or any other Loan Document that constitutes any of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent, on behalf of the Lenders.
Appears in 1 contract
Samples: Guaranty Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
: (i) intentionally omitted;
any limitation of liability or recourse in any other Loan Document or arising under any law; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
; (iv) any homestead exemption or any other exemption under applicable law;
; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person or entity or collateral;
; (vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
; (vii) the death, death of Borrower or the appointment of a conservator or guardian for Borrower; (viii) the insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
; (viiiix) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure depart from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person or entity at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
; (ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
; (xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
; (xixii) whether for any reason Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations, or to pay the amount thereof to someone else; (xiii) the making of advances by Lender to protect its interest in the Property generally the Other Mortgageany property encumbered by a Security Agreement, to preserve the value of such Property any property encumbered by a Security Agreement or for the purpose to facilitate performance of performing any term or covenant contained in any of the Loan Documents;
; (xiixiv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyperson or entity, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Note or any other Loan Document;
; (xiiixv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members persons creating same the Guaranteed Obligations acted in excess outside the scope of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon on this Guaranty regardless of whether the Other Borrower or any other Person person or entity be found not liable on for the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxvi) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member other person or manager of the Other Borrowerentity, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. ; or (xvii) any other condition, event, omission, action or inaction that would in the absence of this Section 4(a) result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage person or the other Loan Documents entity to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party person or entity (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any reasonable attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that that, subject to the limitations set forth in Section 2, until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. .
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of the Guaranteed Obligations Note or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
(d) Lender, at its option and in its sole discretion, may proceed against any collateral securing any of the Guaranteed Obligations by way of judicial or non-judicial foreclosure or any other lawful remedy for the enforcement of its rights, and the obligations of Guarantor under this Guaranty shall survive Lender’s exercise of any such right or remedy. Guarantor understands that Lender’s exercise of its rights and remedies including a non-judicial foreclosure of any Security Agreement could impair, eliminate or destroy subrogation, reimbursement, contribution, indemnification and other rights Guarantor may have against Borrower or others for amounts paid by Guarantor under this Guaranty. Nevertheless, Guarantor hereby waives and relinquishes any claim or defense based upon the loss of any such rights, election of remedies, discharge and satisfaction of the Guaranteed Obligations and, to the fullest extent permitted by law following a non-judicial foreclosure of any Security Agreement, any other claim or defense which may arise under applicable law. If any collateral securing the Guaranteed Obligations is foreclosed or realized upon whether judicially or non-judicially before Lender proceeds against Guarantor under this Guaranty, then Guarantor’s liability for the Guaranteed Obligations shall be the deficiency resulting from the judicial or non-judicial sale or other disposition; i.e., the difference between the amount of the Guaranteed Obligations on the day of the foreclosure sale or other disposition (including principal, accrued interest, reasonable attorneys’ fees including on appeal or otherwise), late charges and costs and expenses of foreclosure or other disposition) and the amount realized at the foreclosure sale or other disposition. To the fullest extent permitted by law, Guarantor waives the right to object to the amount that may be bid by Lender at any foreclosure sale. If not paid in full within thirty (30) days following Lender’s demand, Guarantor’s liability for any deficiency following a non-judicial foreclosure of any Security Agreement securing any of the Guaranteed Obligations shall bear interest from the date of the foreclosure sale, compounded monthly, at the default interest rate in the Note
(e) Guarantor acknowledges that Lender has no obligation to Guarantor to make any additional loans or advances to Borrower or to see to the proper use and application of the funds so advanced. Guarantor understands that the Guaranteed Obligations and this Guaranty can involve substantial risks for Guarantor and agrees that Lender is not a trustee or fiduciary for Guarantor and undertakes no duty, obligation, responsibility or special relationship to Guarantor or to see to proper use and application of any loan or advance or otherwise to protect and not act adversely to Guarantor’s interests. Any application or use of Loan proceeds or advances for purposes other than those provided for in the Loan Documents shall not defeat, limit or impair this Guaranty in whole or in part.
(f) Guarantor represents, warrants and covenants with Lender that Guarantor has not presently guaranteed any other indebtedness of Borrower and shall not guarantee any other indebtedness of Borrower unless such other lender shall enter into a written agreement with Lender that this Guaranty shall be superior to Guarantor’s guarantee of the other lender’s indebtedness, the form and substance of such written agreement to be subject to Lender’s prior approval.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
: (i) intentionally omitted;
any limitation of liability or recourse in any other Loan Document or arising under any law; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
; (iv) any homestead exemption or any other exemption under applicable law;
; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or entity or collateral;
; (vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
; (vii) the death, death of Borrower or the appointment of a conservator or guardian for Borrower; (viii) the insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
; (viiiix) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure depart from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person or entity at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
; (ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
; (xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
; (xixii) whether for any reason Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations, or to pay the amount thereof to someone else; (xiii) the making of advances by Lender to protect its interest in the Property generally the Other Mortgageany property encumbered by a Security Agreement, to preserve the value of such Property any property encumbered by a Security Agreement or for the purpose to facilitate performance of performing any term or covenant contained in any of the Loan Documents;
; (xiixiv) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyperson or entity, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Note or any other Loan Document;
; (xiiixv) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members persons creating same the Guaranteed Obligations acted in excess outside the scope of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon on this Guaranty regardless of whether the Other Borrower or any other Person person or entity be found not liable on for the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xivxvi) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member other person or manager of the Other Borrowerentity, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. ; (xvii) any action which Lender may take under the Lease, including any amendment or modification thereof or enforcement of remedies thereunder, or (xviii) any other condition, event, omission, action or inaction that would in the absence of this Section 3(a) result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage person or the other Loan Documents entity to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party person or entity (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Lender shall be entitled to continue to hold this Guaranty in its possession for a period of one year from the date the Guaranteed Obligations are paid in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lender hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of the Guaranteed Obligations Note or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
(d) Lender, at its option and in its sole discretion, may proceed against any collateral securing any of the Guaranteed Obligations by way of judicial or non-judicial foreclosure or any other lawful remedy for the enforcement of its rights, and the obligations of Guarantor under this Guaranty shall survive Lender's exercise of any such right or remedy. Guarantor understands that Lender's exercise of its rights and remedies including a non-judicial foreclosure of any Security Agreement could impair, eliminate or destroy subrogation, reimbursement, contribution, indemnification and other rights Guarantor may have against Borrower or others for amounts paid by Guarantor under this Guaranty. Nevertheless, Guarantor hereby waives and relinquishes any claim or defense based upon the loss of any such rights, election of remedies, discharge and satisfaction of the Guaranteed Obligations and, to the fullest extent permitted by law following a non-judicial foreclosure of any Security Agreement, any other claim or defense which may arise under applicable law. If any collateral securing the Guaranteed Obligations is foreclosed or realized upon whether judicially or non-judicially before Lender proceeds against Guarantor under this Guaranty, then Guarantor's liability for the Guaranteed Obligations shall be the deficiency resulting from the judicial or non-judicial sale or other disposition; i.e., the difference between the amount of the Guaranteed Obligations on the day of the foreclosure sale or other disposition (including principal, accrued interest, attorneys' fees including on appeal or otherwise), late charges and costs and expenses of foreclosure or other disposition) and the amount realized at the foreclosure sale or other disposition. To the fullest extent permitted by law, Guarantor waives the right to object to the amount that may be bid by Lender at any foreclosure sale. If not paid in full within thirty (30) days following Lender's demand, Guarantor's liability for any deficiency following a non-judicial foreclosure of any Security Agreement securing any of the Guaranteed Obligations shall bear interest from the date of the foreclosure sale, compounded monthly, at the default interest rate in the Note
(e) Guarantor acknowledges that Lender has no obligation to Guarantor to make loans or advances to Borrower except where the obligation is evidenced by Lender's written agreement, or to see to the proper use and application of the funds so advanced. Guarantor understands that the Guaranteed Obligations and this Guaranty can involve substantial risks for Guarantor and agrees that Lender is not a trustee or fiduciary for Guarantor and undertakes no duty, obligation, responsibility or special relationship to Guarantor or to see to proper use and application of any loan or advance or otherwise to protect and not act adversely to Guarantor's interests. Any application or use of Loan proceeds or advances for purposes other than those provided for in the Loan Documents shall not defeat, limit or impair this Guaranty in whole or in part.
(f) Guarantor represents, warrants and covenants with Lender that Guarantor has not presently guaranteed any other indebtedness of Borrower and shall not guarantee any other indebtedness of Borrower unless such other lender shall enter into a written agreement with Lender that this Guaranty shall be superior to Guarantor's guarantee of the other lender's indebtedness, the form and substance of such written agreement to be subject to Lender's prior approval.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) intentionally omitted;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) any homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person or collateral;
(vi) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) either with or without notice to or consent of Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligations, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY"), including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other Property, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other party, whether or not arising in connection with this Guaranty, the Note, the Mortgage, or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrower, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from From any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeased, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. If the time for payment of any amount payable by the Other Borrower of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Inland Western Retail Real Estate Trust Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other person in any Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any laws (other than statutes of limitation) regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Lender against Guarantor, to the fullest extent permitted by law;
(v) any homestead exemption or any other exemption under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person or collateral;
(vivii) whether express or by operation of law, any partial release of the liability of Guarantor hereunderhereunder (except to the extent paid, performed or if one expressly so released) or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Event of Default, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyperson, whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, the Environmental Indemnity, the Mortgage, the Security Agreement or any other Loan Document; provided, however, that the foregoing shall not be deemed a waiver of Guarantor’s right to assert any compulsory counterclaim maintained in a court of the United States or the State of Florida if such counterclaim is compelled under local law or procedure;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, or action that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement; or
(xvi) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any reasonable attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be expressly released or discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Lender from Borrower, any other person or any other source (other than from Guarantor pursuant to a demand by Lender hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Lender’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
(f) Guarantor hereby waives and agrees not to assert or take advantage of (i) any right or claim of right to cause a marshalling of any of Borrower’s assets or the assets of any other party now or hereafter held as security for the Indebtedness; (ii) the defense of laches in any action hereunder or for the payment of the Indebtedness and performance of any obligation hereby guaranteed; (iii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of Guarantor, any other guarantor of the Loan, or Borrower or any other person or entity, or the voluntary or involuntary dissolution of Borrower or Guarantor, or the failure of Lender to file or enforce a claim against the estate (either in administration, bankruptcy, or any other proceeding) or Borrower or any other person or entity; (iv) any defense based on the failure of Lender to give notice of the existence, creation, or incurring of any new or additional indebtedness or obligation, or of any action or nonaction on the part of any other person whomsoever, or any modification of the terms of the Loan Documents, or the Indebtedness, in connection with any obligation hereby guaranteed; (v) any defense based upon an election of remedies by Lender which destroys or otherwise impairs any subrogation rights of Guarantor or any other guarantor of the Loan or the right of Guarantor to proceed against Borrower or any other guarantor for reimbursement, or both; (vi) any defense based upon failure of Lender to commence an action against Borrower; (vii) any defense based upon acceptance of this Guaranty by Lender; (viii) any defense based upon the invalidity or unenforceability of any of the Loan Documents; (ix) any defense based upon any complete or partial release of liability contained in any of the Loan Documents; (x) any defense based upon any transfer by Borrower of all or any part of the collateral for the Loan; (xi) any defense based upon the failure of Lender to perfect any security or to extend or renew the perfection of any security; and (xii) any other legal or equitable defenses whatsoever to which Guarantor might otherwise be entitled.
Appears in 1 contract
Samples: Guaranty of Payment and Performance (Ivax Diagnostics Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's Lenders' rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i1) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) any homestead exemption or any other exemption under applicable law;
(v5) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;
(vi6) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii7) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) 8) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent, on behalf of the Lenders, to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix9) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent, on behalf of the Lenders, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x10) any failure of Lender Administrative Agent, on behalf of the Lenders, to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent, on behalf of the Lenders, against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lenders and the Other Borrower, it being understood that Lender Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and the other Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and the other Lenders may have concerning the Other Borrower.
(xi11) if for any reason any Lender is required to refund any payment by Borrower to any other party liable for the payment of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(12) the making of advances by Lender Administrative Agent to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii13) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or GUARANTY AGREEMENT - Page 5 ------------------ any other partyPerson, whether or not arising in connection with this Guaranty, the any Note, the MortgageCredit Agreement, or any other Loan Document;
(xiii14) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv15) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. Administrative Agent and the other Lenders.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to any Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason any Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to any Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by any such Lender or paid by any such Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by any such Lender and any reasonable attorneys' fees, costs and expenses paid or incurred by any such Lender in connection with any such event. It is the intent of Guarantor and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent, on behalf of the Lenders, shall be entitled to continue to hold this Guaranty in its possession for a period of one year from the date the Guaranteed Obligations are paid in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under any Note, the Other Borrower of the Guaranteed Obligations Credit Agreement, or any other Loan Document is stayed or GUARANTY AGREEMENT - Page 6 ------------------ delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent, on behalf of the Lenders.
(d) This Guaranty may not be changed orally and no obligation of the Guarantor can be released or waived by Administrative Agent, on behalf of the Lenders, except by a signed writing by an authorized officer of Administrative Agent. Guarantor hereby waives any rights it might have under C.R.S. xx.xx. 00-00-000 and 103.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, circumstances or circumstancesrights, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i1) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) any homestead exemption or any other exemption under applicable law;
(v5) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vi6) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii7) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) 8) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or and any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) dates and interest rate(s)rates) or performance (including terms or aspects relating to the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Lender, to the Other Borrower, Guarantor, and/or and any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix9) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Lender, to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x10) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Lender, against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.;
(xi11) if for any reason Lender is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Obligations or pay the amount thereof to someone else;
(12) the making of advances by Lender to protect its interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii13) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiii14) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or
(xiv15) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. .
(b) In the event any payment to Lender by the Other Borrower or any other party under Person to Lender in respect of the Other Note, the Other Mortgage or the other Loan Documents Obligations is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedpaid, and not subject to refund or disgorgementany applicable preference period has expired, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantorGuarantor. If Lender shall be entitled to continue to hold this Guaranty in its possession for the time for payment longer of (i) the period during which any amount payable by the Other Borrower performance of the Guaranteed obligations under the Loan Agreement shall be required by its terms, or (ii) a period of one year from the date the Obligations is stayed are paid in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and to exercise any right or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lenderremedy of Lender hereunder.
Appears in 1 contract
Samples: Limited Guaranty Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Lender against Guarantor, to the fullest extent permitted by law;
(v) any homestead exemption or any other exemption that is waivable under applicable law;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's recourse against any person Person or collateral;
(vivii) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of Borrower, any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower Guarantor or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification amendment, modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, including without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed ObligationsObligations in compliance with applicable law or in a commercially reasonable manner;
(xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the Mortgage, Loan Agreement or any other Loan DocumentDocument other than the defense of payment;
(xiii) the invalidity or unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender's claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xv) any other condition, event, omission or action that would in the absence of this paragraph result in the release or discharge of a Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement other than irrevocable payment in full in cash of the Guaranteed Obligations;
(xvi) any early termination of any of the Guaranteed Obligations;
(xvii) Lender's enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis;
(xviii) all suretyship defenses and defenses in the nature thereof;
(xix) notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of nonpayment, nonperformance, nonobservance or default, or other proof or notice of demand whereby to charge a Guarantor therefor; or
(xx) the avoidance of any lien in favor of Lender for any reason.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and and, to the extent the same constitute Guaranteed Obligations, this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantorGuarantor.
(d) Guarantor's obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Lender from Borrower, any other Person or any other source (other than from a Guarantor pursuant to a demand by Lender hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Lender's sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, or any other Loan Document, is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Samples: Guaranty Agreement (Bluerock Residential Growth REIT, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's the rights or remedies of Administrative Agent and Lenders nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i1) intentionally omittedany limitation of liability or recourse in any other Loan Document or arising under any law;
(ii2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration;
(iii3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv4) any homestead exemption or any other exemption that is waivable under applicable law;
(v5) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any person Person or collateral;
(vi6) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by Lender Administrative Agent and/or Lenders covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vii7) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viii) 8) either with or without notice to or consent of Guarantor: any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender Administrative Agent and/or Lenders to the Other Borrower, Guarantor, and/or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ix9) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Administrative Agent and/or Lenders to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(x10) any failure of Lender Administrative Agent and/or Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by Lender Administrative Agent and/or Lenders against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Administrative Agent and/or Lenders and the Other Borrower, it being understood that Lender Administrative Agent and/or Lenders shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender Administrative Agent and/or Lenders shall have no duty to notify the Guarantor of any information which the Lender Administrative Agent and/or Lenders may have concerning the Other Borrower.;
(xi11) if for any reason Administrative Agent and/or Lenders is required to refund any payment by Borrower to any other party liable for the payment or performance of any or all of the Guaranteed Obligations or pay the amount thereof to someone else;
(12) the making of advances by Lender Administrative Agent and/or Lenders to protect its their interest in the Property generally the Other MortgageProperty, preserve the value of such the Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii13) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim set‑off or other right that Guarantor may at any time have against the Other Borrower, Administrative Agent, any Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, or any other Loan Document;
(xiii14) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXultra xxxxx, or because the officers or members Persons creating same the Guaranteed Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv15) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. ; or
(16) any other condition, event, omission, action or inaction that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement.
(17) any early termination of any of the Guaranteed Obligations;
(18) Administrative Agent's and/or Lenders' enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(19) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Administrative Agent and/or Lenders is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender Administrative Agent and/or Lenders is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender Administrative Agent and/or Lenders shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender Administrative Agent and/or Lenders of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender Administrative Agent and/or Lenders or paid by Lender Administrative Agent and/or Lenders to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender Administrative Agent and/or Lenders and any attorneys' fees, costs and expenses paid or incurred by Lender Administrative Agent and/or Lenders in connection with any such event. It is the intent of Guarantor Guarantor, Administrative Agent and Lender Lenders that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. Administrative Agent and/or Lenders shall be entitled to continue to hold this Guaranty in its possession for the longer of (i) the period after which any performance of obligations under the Environmental Agreement shall accrue, or (ii) a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or remedy of Administrative Agent and/or Lenders hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, any Swap Contract or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent and/or Lenders.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that neither Lender's ’s rights or remedies nor Guarantor's ’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute absolute, unconditional and unconditional irrevocable irrespective of:
(i) intentionally omittedany limitation on the liability of, or recourse against, any other Person in any Loan Document or arising under any Law;
(ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate considerationconsideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of Borrower under the other Loan Documents;
(iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(iv) the operation of any statutes of limitation or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by Lender against Guarantor, to the fullest extent permitted by Law;
(v) any homestead exemption or any other exemption under applicable lawLaw;
(vvi) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including or any impairment of Guarantor's ’s recourse against any person Person or collateral;
(vivii) whether express or by operation of lawLaw, any partial release of the liability of Guarantor hereunder, hereunder (except to the extent expressly so released) or if one or more other guaranties are now or hereafter obtained by Lender covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release or settlement of the Other Borrower or any other party Person liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(viiviii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Other Borrower or any other party Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(viiiix) either with or without notice to or consent of Guarantor: , any renewal, extension, modification modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or any of the Loan Documents, including, without limitation, including material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance (including changes with respect to the construction of the Improvements) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Lender to the Other Borrower, Guarantor, and/or Borrower or any other person Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(ixx) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to enforce take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security for the Guaranteed Obligationstherefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral now or hereafter securing any or all of the Guaranteed Obligations;
(xxi) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of the occurrence or existence of any Default or Event of Default, or of any other action taken or refrained from being taken by Lender against the Other Borrower or any security or other recourse, or of any new agreement between Lender, Lender and the Other Borrower, it being understood that Lender shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and the Guarantor shall be responsible for obtaining for itself information regarding the Other Borrower and the property secured by the Other Mortgage (the "OTHER PROPERTY")Borrower, including, but not limited to, including any changes in the business or financial condition of the Other Borrower or the Other PropertyBorrower, and the Guarantor acknowledges and agrees that the Lender shall have no duty to notify the Guarantor of any information which the Lender may have concerning the Other Borrower.
(xi) the making of advances by Lender to protect its interest in the Property generally the Other Mortgage, preserve the value of such Property or for the purpose of performing any term or covenant contained in any of the Loan Documents;
(xii) the existence of any claim, counterclaim, set-off, recoupment, reduction or defense based upon any claim off or other right that Guarantor may at any time have against the Other Borrower, Lender, or any other partyPerson, whether or not arising in connection with this Guaranty, the Note, the MortgageLoan Agreement, the Environmental Agreement or any other Loan Document;
(xiii) the unenforceability of all or any part of the Guaranteed Obligations against the Other Borrower, whether because the Guaranteed Obligations exceed the amount permitted by law Law or violate any usury law, or because the act of Persons creating the Guaranteed Obligations, or any part thereof, is ULTRA XXXXX, or because the officers or members creating same Obligations acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because any of the Other Borrower has any valid defense, claim or offset with respect thereto, or because the Other Borrower's ’s obligation ceases to exist by operation of lawLaw, or because of any other reason or circumstance, it being agreed that Guarantor shall remain liable hereon regardless of whether the Other Borrower or any other Person be found not liable on the Guaranteed Obligations, or any part thereof, for any reason (and regardless of any joinder of Other Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations); or;
(xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Other Borrower or any member or manager of the Other Borrowerother Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by Lender. , or any action taken or omitted by Lender in any such proceedings, including any election to have Lender’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Lender in any such proceedings or the taking and holding by Lender of any security for any such extension of credit;
(xv) any other condition, event, omission, or action that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(xvi) any early termination of any of the Guaranteed Obligations;
(xvii) Lender’s enforcement or forbearance from enforcement of the Guaranteed Obligations on a net or gross basis; or
(xviii) any liability, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any Swap Contract or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the liability of Borrower thereunder or any limitation on the method or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(b) In the event any payment to Lender by the Other Borrower or any other party under the Other Note, the Other Mortgage or the other Loan Documents Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by the Other Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another party Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender and any attorneys' ’ fees, costs and expenses paid or incurred by Lender in connection with any such event. .
(c) It is the intent of Guarantor and Lender that the obligations and liabilities of Guarantor hereunder are absolute absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid or defeasedand performed, and not subject to refund or disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.
(d) Guarantor’s obligations shall not be affected, impaired, lessened or released by loans, credits or other financial accommodations now existing or hereafter advanced by Lender to Borrower in excess of the Guaranteed Obligations. All payments, repayments and prepayments of the Loan, whether voluntary or involuntary, received by Lender from Borrower, any other Person or any other source (other than from Guarantor pursuant to a demand by Lender hereunder), and any amounts realized from any collateral for the Loan, shall be deemed to be applied first to any portion of the Loan which is not covered by this Guaranty, and last to the Guaranteed Obligations, and this Guaranty shall bind Guarantor to the extent of any Guaranteed Obligations that may remain owing to Lender. Lender shall have the right to apply any sums paid by Guarantor to any portion of the Loan in Lender’s sole and absolute discretion.
(e) If acceleration of the time for payment of any amount payable by Borrower under the Other Borrower of Note, the Guaranteed Obligations Loan Agreement, any other Loan Document, or any Swap Contract (not settled) is stayed or delayed by any law Law or tribunal, all such amounts shall nonetheless be payable by Guarantor on demand by Lender.
(f) In addition to all other waivers contained herein, Guarantor hereby waives any and all rights it may have under Sections 26-7 through 26-9 of the North Carolina General Statutes.
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Samples: Guaranty Agreement (Inland Real Estate Income Trust, Inc.)
