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) any limitation of liability or recourse in any other Loan Document or arising under any Law; (ii) 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; (iii) 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; (iv) 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 of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations; (v) 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 Borrower, Guarantor or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (vi) 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 (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 Borrower, Guarantor, and/or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations; (vii) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to 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 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 securing any or all of the Guaranteed Obligations (excepting only, with respect to any such sale or other disposition of collateral, any such requirement imposed at the time in question by then applicable law and which may not be waived by Guarantor, and Guarantor agreeing, with respect to any such sale or other disposition to which SECTION 9.504(c) of the Texas Business and Commerce Code or other similar provision of applicable law, is determined to be applicable, that ten (10) days notice shall constitute reasonable notification; and provided that, except for any such requirement applicable to any sale or other disposition of any such collateral which may not be waived, no provision of this Guaranty shall be construed to limit or otherwise adversely affect Lender's absolute and discretionary rights, as set forth in this Guaranty, to release and/or otherwise deal or fail to deal with any such collateral without affecting or impairing Guarantor's liability hereunder); (viii) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, 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 Borrower or any security or other recourse or of any new agreement between Lender and 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 (excepting only any notice, if any, required at the time in question by then-applicable law and not waivable by Guarantor); (ix) 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; (x) the existence of any claim, set-off, or other right that Guarantor may at any time have against Borrower, Lender, or any other Person (hereinafter defined), whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, or any other Loan Document (provided that nothing contained herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim); or (xi) the unenforceability of all or any part of the Guaranteed Obligations against 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 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 Borrower has any valid defense, claim or offset with respect thereto, or because 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 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 Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations). (b) In the event any payment by Borrower or any other party 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 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 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 and 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 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 Note, the 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 (Apartment Investment & Management Co)
Certain Agreements and Waivers by Guarantor. 3.1 Guarantor hereby irrevocably waives any defenses to enforcement it may have (now or in the future) by reason of the following:
(a) Guarantor hereby agrees that neither Lender's rights any illegality, invalidity or remedies nor Guarantor's obligations under unenforceability of any Obligation or the terms Agreement, or any law, regulation, decree or order of this Guaranty shall be released, diminished, impaired, reduced any jurisdiction or affected by any one or more other event affecting any term of the following events, actions, facts, or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) any limitation of liability or recourse in any other Loan Document or arising under any Law;
(ii) 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;
(iiib) any release, surrender, abandonmenttaking, exchange, alterationsubstitution, sale or other disposition, subordination, deterioration, waste, failure to protect or preserverelease, impairment, amendment, waiver, modification or loss ofnon-perfection of any collateral or any other guaranty for the Obligations, or any failure to create manner of sale, disposition or perfect any lien or security interest with respect to, or any other dealings with, application of proceeds of any collateral or security at any time existing other assets to all or purported, believed or expected to exist in connection with any or all part of the Guaranteed Obligations;
(ivc) whether express any default, failure or by operation of Lawdelay, any partial release willful or otherwise, in the performance 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 of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(vd) any change, restructuring or termination of the deathcorporate structure, ownership or existence of Guarantor or Obligor or any insolvency, bankruptcy, disabilityreorganization or other similar proceeding affecting Obligor or its assets or any resulting restructuring, dissolutionrelease or discharge of any Obligations;
(e) any failure of Beneficiaries to disclose to Guarantor any information relating to the business, liquidationcondition (financial or otherwise), terminationoperations, receivershipperformance, reorganizationproperties or prospects of Obligor now or hereafter known to Beneficiaries, merger, consolidation, change Guarantor waiving any duty of form, structure Beneficiaries to disclose such information;
(f) the failure of any other guarantor or ownership, sale of all assetsthird party to execute or deliver this Guaranty or any other guaranty or agreement, or lack the release or reduction of corporate, partnership or other power liability of any Borrower, Guarantor or any other party at any time liable for the payment guarantor or performance of any or all of the Guaranteed Obligations;
(vi) 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 (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 Borrower, Guarantor, and/or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(vii) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to 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 surety with respect to any security 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 securing any or all of the Guaranteed Obligations (excepting only, with respect to any such sale or other disposition of collateral, any such requirement imposed at the time in question by then applicable law and which may not be waived by Guarantor, and Guarantor agreeing, with respect to any such sale or other disposition to which SECTION 9.504(c) of the Texas Business and Commerce Code or other similar provision of applicable law, is determined to be applicable, that ten (10) days notice shall constitute reasonable notification; and provided that, except for any such requirement applicable to any sale or other disposition of any such collateral which may not be waived, no provision of this Guaranty shall be construed to limit or otherwise adversely affect Lender's absolute and discretionary rights, as set forth in this Guaranty, to release and/or otherwise deal or fail to deal with any such collateral without affecting or impairing Guarantor's liability hereunder);
(viii) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, 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 Borrower or any security or other recourse or of any new agreement between Lender and 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 (excepting only any notice, if any, required at the time in question by then-applicable law and not waivable by Guarantor);
(ix) 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;
(x) the existence of any claim, set-off, or other right that Guarantor may at any time have against Borrower, Lender, or any other Person (hereinafter defined), whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, or any other Loan Document (provided that nothing contained herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim); or
(xig) the unenforceability failure of all or Beneficiaries to assert any part of the Guaranteed Obligations against 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 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 Borrower has any valid defense, claim or offset with respect thereto, demand or because 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 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 Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations).
(b) In the event any payment by Borrower or any other party 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 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 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 and 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 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 or enforce any right or remedy of Lender hereunder.
(c) If acceleration under the provisions of the time for payment of any amount payable by Borrower under the Note, the Loan Agreement, 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 Lenderotherwise.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby acknowledges that the obligations undertaken herein involve the guaranty of obligations of persons or entities other than Guarantor and, in full recognition of that fact, consents and agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be releasedLender may, 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) any limitation of liability or recourse in any other Loan Document or arising under any Law;
(ii) 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;
(iii) 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;
(iv) 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 of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(v) 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 Borrower, Guarantor or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(vi) 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 (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, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate or otherwise change the time by Lender to Borrower, Guarantor, and/or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(vii) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to 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 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 securing any or all of the Guaranteed Obligations (excepting only, with respect to any such sale or other disposition of collateral, any such requirement imposed at the time in question by then applicable law and which may not be waived by Guarantor, and Guarantor agreeing, with respect to any such sale or other disposition to which SECTION 9.504(c) of the Texas Business and Commerce Code or other similar provision of applicable law, is determined to be applicable, that ten (10) days notice shall constitute reasonable notification; and provided that, except for any such requirement applicable to any sale or other disposition of any such collateral which may not be waived, no provision of this Guaranty shall be construed to limit or otherwise adversely affect Lender's absolute and discretionary rights, as set forth in this Guaranty, to release and/or otherwise deal or fail to deal with any such collateral without affecting or impairing Guarantor's liability hereunder);
(viii) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, or assignment terms of the Guaranteed Obligations or any part thereof, including any increase or decrease of any Loan Documentthe rate(s) of interest thereon; (b) supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Guaranteed Obligations or any part thereof, or any of the Loan Documents to which Guarantor is not a party or any release additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (c) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or change in the Guaranteed Obligations or any part thereof; (d) accept partial payments on the Guaranteed Obligations; (e) receive and hold additional security or guaranties for the Guaranteed Obligations or any part thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer and/or enforce any security or guaranties, and apply any security and direct the order or manner of sale thereof as Lender in its sole and absolute discretion may determine; (g) release any Person from any personal liability with respect to the Guaranteed Obligations or any part thereof; (h) settle, release on terms satisfactory to Lender or by operation of applicable Laws or otherwise liquidate or enforce any Guaranteed Obligations and any security or guaranty therefor in any manner, consent to the transfer of any security and bid and purchase at any sale; and/or (i) consent to the merger, change or any other action taken restructuring or refrained from being taken by Lender against termination of the limited liability company existence or other existence of Borrower or any security or other recourse or guarantor of any new agreement between Lender the Loan, and 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 correspondingly restructure the Guaranteed Obligations, and any and all rights to notice such merger, change, restructuring or termination shall not affect the liability of Guarantor may have otherwise had being hereby waived by Guarantor (excepting only any notice, if any, required at or the time in question by then-applicable law and not waivable by Guarantor);
(ix) 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;
(x) the existence of any claim, set-offcontinuing effectiveness hereof, or other right that Guarantor may at any time have against Borrower, Lender, or any other Person (hereinafter defined), whether or not arising in connection the enforceability hereof with this Guaranty, the Note, the Loan Agreement, or any other Loan Document (provided that nothing contained herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim); or
(xi) the unenforceability of respect to all or any part of the Guaranteed Obligations Obligations. Upon the occurrence and during the continuance of any Default, Lender may enforce this Guaranty independently as to Guarantor and independently of any other remedy or security Lender at any time may have or hold in connection with the Guaranteed Obligations. Guarantor expressly waives any right to require Lender to marshal assets in favor of Borrower, and agrees that Lender may proceed against Borrower, or against any other guarantor of the Loan, or upon or against any security or remedy, before proceeding to enforce this Guaranty, in such order as Lender shall determine in its sole and absolute discretion. Lender may file a separate action or actions against Borrower and/or any other guarantor of the Loan without respect to whether because action is brought or prosecuted with respect to any security or against any other person or entity, or whether any other person or entity is joined in any such action or actions. Guarantor agrees that Lender and Borrower or any other guarantor of the Loan may deal with each other in connection with the Guaranteed Obligations exceed the amount permitted by law or violate any usury lawotherwise, or because alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the act security of creating this Guaranty. Lender's rights hereunder shall be reinstated and revived, and the enforceability of this Guaranty shall continue, with respect to any amount at any time paid on account of the Guaranteed Obligations which thereafter shall be required to be restored or returned by Lender upon the bankruptcy, insolvency or reorganization of Borrower or any other guarantor of the Loan, all as though such amount had not been paid. The rights of Lender created or granted herein and the enforceability of this Guaranty with respect to Guarantor at all times shall remain effective to guaranty the full amount of all the Guaranteed Obligations, even though the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXor any security or guaranty therefor, may be or because the officers hereafter may become invalid or 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 Borrower has any valid defense, claim or offset with respect thereto, or because 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 otherwise unenforceable as against Borrower or any other Person be found guarantor of the Loan or surety and whether or not liable on the Guaranteed Obligations, Borrower or any part thereof, for other guarantor of the Loan shall have any personal liability with respect thereto. Guarantor expressly waives any and all defenses now or hereafter arising or asserted by reason of (and regardless of a) any joinder disability or other defense of Borrower or any other party guarantor of the Loan with respect to the Guaranteed Obligations, (b) the unenforceability or invalidity of any security or guaranty for the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations, (c) the cessation for any cause whatsoever of the liability of Borrower or any other guarantor of the Loan (other than by reason of the full payment and performance of all Guaranteed Obligations), (d) any failure of Lender to marshal assets in favor of Borrower or any other guarantor of the Loan, (e) except as otherwise provided in this Guaranty, any failure of Lender to give notice of sale or other disposition of any collateral securing any Guaranteed Obligation to Guarantor or any other person or entity or any defect in any action to obtain payment notice that may be given in connection with any sale or performance disposition of any collateral securing any Guaranteed Obligation, (f) any failure of Lender to comply with applicable Laws in connection with the sale or other disposition of any collateral securing any Guaranteed Obligation or other security for any Guaranteed Obligation, including without limitation, any failure of Lender to conduct a commercially reasonable sale or other disposition of any collateral securing any Guaranteed Obligation or other security for any Guaranteed Obligation, (g) any act or omission of Lender or others that directly or indirectly results in or aids the discharge or release of Borrower or any other guarantor of the Loan or the Guaranteed Obligations or any security or guaranty therefor by operation of law or otherwise, (h) any Law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (i) any failure of Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any person or entity, (j) the election by Lender, in any bankruptcy proceeding of any person or entity, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (k) any extension of credit or the grant of any lien under Section 364 of the United States Bankruptcy Code, (l) any use of cash xxxxxxxxxx xxxxx Xxxxxxx 000 xx the United States Bankruptcy Code, (m) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (n) the avoidance of any lien in favor of Lender for any reason, (o) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any person or entity, including any discharge of, or bar or stay against collecting, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding, or (p) any action taken by Lender that is authorized by this Section or any other provision of any Loan Document. Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations), and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations.
(b) In the event any payment by Borrower or any other party Person to Lender Administrative Agent 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 is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender Administrative Agent 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 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 paid by Lender Administrative Agent to another party Person (except Guarantor) (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender Administrative Agent and any reasonable attorneys' fees, costs and expenses paid or incurred by Lender Administrative Agent 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 and 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 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 (the "Post Payment and Performance 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 Administrative Agent hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the NoteNotes, the Loan Agreement, or any other Loan Document (other than this Guaranty) is stayed or delayed by any Law law or Tribunaltribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(d) Guarantor waives: (i) to the extent permitted in paragraph 40.495(4) of the Nevada Revised Statutes ("NRS"), the benefits of the one-action rule under NRS Section 40.430, and (ii) to the extent permitted by NRS 104.3605, discharge under NRS 104.3605(9).
Appears in 1 contract
Samples: Guaranty Agreement (MGM Mirage)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby acknowledges that the obligations undertaken herein involve the guaranty of obligations of persons or entities other than Guarantor and, in full recognition of that fact, consents and agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be releasedLender may, 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) any limitation of liability or recourse in any other Loan Document or arising under any Law;
(ii) 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;
(iii) 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;
(iv) 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 of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(v) 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 Borrower, Guarantor or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(vi) 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 (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, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate or otherwise change the time by Lender to Borrower, Guarantor, and/or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(vii) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to 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 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 securing any or all of the Guaranteed Obligations (excepting only, with respect to any such sale or other disposition of collateral, any such requirement imposed at the time in question by then applicable law and which may not be waived by Guarantor, and Guarantor agreeing, with respect to any such sale or other disposition to which SECTION 9.504(c) of the Texas Business and Commerce Code or other similar provision of applicable law, is determined to be applicable, that ten (10) days notice shall constitute reasonable notification; and provided that, except for any such requirement applicable to any sale or other disposition of any such collateral which may not be waived, no provision of this Guaranty shall be construed to limit or otherwise adversely affect Lender's absolute and discretionary rights, as set forth in this Guaranty, to release and/or otherwise deal or fail to deal with any such collateral without affecting or impairing Guarantor's liability hereunder);
(viii) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, or assignment terms of the Guaranteed Obligations or any part thereof, including any increase or decrease of any Loan Documentthe rate(s) of interest thereon; (b) supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Guaranteed Obligations or any part thereof, or any of the Loan Documents to which Guarantor is not a party or any release additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (c) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or change in the Guaranteed Obligations or any part thereof; (d) accept partial payments on the Guaranteed Obligations; (e) receive and hold additional security or guaranties for the Guaranteed Obligations or any part thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer and/or enforce any security or guaranties, and apply any security and direct the order or manner of sale thereof as Lender in its sole and absolute discretion may determine; (g) release any Person from any personal liability with respect to the Guaranteed Obligations or any part thereof; (h) settle, release on terms satisfactory to Lender or by operation of applicable Laws or otherwise liquidate or enforce any Guaranteed Obligations and any security or guaranty therefor in any manner, consent to the transfer of any security and bid and purchase at any sale; and/or (i) consent to the merger, change or any other action taken restructuring or refrained from being taken by Lender against termination of the limited liability company existence or other existence of Borrower or any security or other recourse or guarantor of any new agreement between Lender the Loan, and 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 correspondingly restructure the Guaranteed Obligations, and any and all rights to notice such merger, change, restructuring or termination shall not affect the liability of Guarantor may have otherwise had being hereby waived by Guarantor (excepting only any notice, if any, required at or the time in question by then-applicable law and not waivable by Guarantor);
(ix) 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;
(x) the existence of any claim, set-offcontinuing effectiveness hereof, or other right that Guarantor may at any time have against Borrower, Lender, or any other Person (hereinafter defined), whether or not arising in connection the enforceability hereof with this Guaranty, the Note, the Loan Agreement, or any other Loan Document (provided that nothing contained herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim); or
(xi) the unenforceability of respect to all or any part of the Guaranteed Obligations Obligations. Upon the occurrence and during the continuance of any Default, Lender may enforce this Guaranty independently as to Guarantor and independently of any other remedy or security Lender at any time may have or hold in connection with the Guaranteed Obligations. Guarantor expressly waives any right to require Lender to marshal assets in favor of Borrower, and agrees that Lender may proceed against Borrower, or against any other guarantor of the Loan, or upon or against any security or remedy, before proceeding to enforce this Guaranty, in such order as Lender shall determine in its sole and absolute discretion. Lender may file a separate action or actions against Borrower and/or any other guarantor of the Loan without respect to whether because action is brought or prosecuted with respect to any security or against any other person or entity, or whether any other person or entity is joined in any such action or actions. Guarantor agrees that Lender and Borrower or any other guarantor of the Loan may deal with each other in connection with the Guaranteed Obligations exceed the amount permitted by law or violate any usury lawotherwise, or because alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the act security of creating this Guaranty. Lender’s rights hereunder shall be reinstated and revived, and the enforceability of this Guaranty shall continue, with respect to any amount at any time paid on account of the Guaranteed Obligations which thereafter shall be required to be restored or returned by Lender upon the bankruptcy, insolvency or reorganization of Borrower or any other guarantor of the Loan, all as though such amount had not been paid. The rights of Lender created or granted herein and the enforceability of this Guaranty with respect to Guarantor at all times shall remain effective to guaranty the full amount of all the Guaranteed Obligations, even though the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXor any security or guaranty therefor, may be or because the officers hereafter may become invalid or 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 Borrower has any valid defense, claim or offset with respect thereto, or because 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 otherwise unenforceable as against Borrower or any other Person be found guarantor of the Loan or surety and whether or not liable on the Guaranteed Obligations, Borrower or any part thereof, for other guarantor of the Loan shall have any personal liability with respect thereto. Guarantor expressly waives any and all defenses now or hereafter arising or asserted by reason of (and regardless of a) any joinder disability or other defense of Borrower or any other party guarantor of the Loan with respect to the Guaranteed Obligations, (b) the unenforceability or invalidity of any security or guaranty for the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations, (c) the cessation for any cause whatsoever of the liability of Borrower or any other guarantor of the Loan (other than by reason of the full payment and performance of all Guaranteed Obligations), (d) any failure of Lender to marshal assets in favor of Borrower or any other guarantor of the Loan, (e) except as otherwise provided in this Guaranty, any failure of Lender to give notice of sale or other disposition of any collateral securing any Guaranteed Obligation to Guarantor or any other person or entity or any defect in any action to obtain payment notice that may be given in connection with any sale or performance disposition of any collateral securing any Guaranteed Obligation, (f) any failure of Lender to comply with applicable Laws in connection with the sale or other disposition of any collateral securing any Guaranteed Obligation or other security for any Guaranteed Obligation, including without limitation, any failure of Lender to conduct a commercially reasonable sale or other disposition of any collateral securing any Guaranteed Obligation or other security for any Guaranteed Obligation, (g) any act or omission of Lender or others that directly or indirectly results in or aids the discharge or release of Borrower or any other guarantor of the Loan or the Guaranteed Obligations or any security or guaranty therefor by operation of law or otherwise, (h) any Law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation, (i) any failure of Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any person or entity, (j) the election by Lender, in any bankruptcy proceeding of any person or entity, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (k) any extension of credit or the grant of any lien under Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, (l) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (m) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (n) the avoidance of any lien in favor of Lender for any reason, (o) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any person or entity, including any discharge of, or bar or stay against collecting, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding, or (p) any action taken by Lender that is authorized by this Section or any other provision of any Loan Document. Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations), and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations.
(b) In the event any payment by Borrower or any other party Person to Lender Administrative Agent 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 is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender Administrative Agent 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 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 paid by Lender Administrative Agent to another party Person (except Guarantor) (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender Administrative Agent and any reasonable attorneys' ’ fees, costs and expenses paid or incurred by Lender Administrative Agent 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 and 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 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 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 Administrative Agent hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the NoteNotes, the Loan Agreement, or any other Loan Document (other than this Guaranty) is stayed or delayed by any Law law or Tribunaltribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(d) Guarantor waives: (i) to the extent permitted in paragraph 40.495(4) of the Nevada Revised Statutes (“NRS”), the benefits of the one-action rule under NRS Section 40.430, and (ii) to the extent permitted by NRS 104.3605, discharge under NRS 104.3605(9).
Appears in 1 contract
Samples: Guaranty Agreement (MGM Mirage)
Certain Agreements and Waivers by Guarantor. (a) 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) any limitation of liability or recourse in any other Loan Document or arising under any LawDocument;
(iib) 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;
(iiic) 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 ObligationsObligation;
(ivd) 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 of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligationsthem hereunder;
(ve) 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 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;
(vif) 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 (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 or given by Lenders to Borrower or any other Guarantor from time to time by Lender to Borrower, Guarantor, and/or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligationstime;
(viig) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender Lenders to take or prosecute (or in taking or prosecuting) 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) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, 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 securing any or all of the Guaranteed Obligations (excepting only, with respect to any such sale or other disposition of collateral, any such requirement imposed at the time in question by then applicable law and which may not be waived by Guarantor, and Guarantor agreeing, with respect to any such sale or other disposition to which SECTION 9.504(c) of the Texas Business and Commerce Code or other similar provision of applicable law, is determined to be applicable, that ten (10) days notice shall constitute reasonable notification; and provided that, except for any such requirement applicable to any sale or other disposition of any such collateral which may not be waived, no provision of this Guaranty shall be construed to limit or otherwise adversely affect Lender's absolute and discretionary rights, as set forth in this Guaranty, to release and/or otherwise deal or fail to deal with any such collateral without affecting or impairing Guarantor's liability hereunder);
(viiih) any failure of Lender Lenders to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, 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 or of any other action taken or refrained from being taken by Lender Lenders against Borrower or any security or other recourse or of any new agreement between Lender Lenders and 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 (excepting only any notice, if any, required at the time in question by then-applicable law and not waivable by Guarantor)Obligation;
(ix) 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;
(x) the existence of any claim, set-off, or other right that Guarantor may at any time have against Borrower, Lender, or any other Person (hereinafter defined), whether or not arising in connection with this Guaranty, the Note, the Loan Agreement, or any other Loan Document (provided that nothing contained herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim); or
(xii) the unenforceability of all or any part of the Guaranteed Obligations Obligation against 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 Persons 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 Borrower has any valid defense, claim or offset with respect theretothereto (other than payment and performance of the Indebtedness), or because 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 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 Borrower or any other party in any action to obtain payment or performance of any or all of the Guaranteed Obligations).reason; or
(bj) In the event any payment by Borrower or any other party to Lender 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 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 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 and 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. 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 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 Note, the 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 acknowledges that the obligations undertaken herein involve the guaranty of obligations of persons or entities other than Guarantor and, in full recognition of that fact, consents and agrees that neither Lender's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be releasedLender may, 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) any limitation of liability or recourse in any other Loan Document or arising under any Law;
(ii) 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;
(iii) 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;
(iv) 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 of Borrower or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations;
(v) 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 Borrower, Guarantor or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(vi) 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 (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, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate or otherwise change the time by Lender to Borrower, Guarantor, and/or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations;
(vii) any neglect, lack of diligence, delay, omission, failure, or refusal of Lender to 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 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 securing any or all of the Guaranteed Obligations (excepting only, with respect to any such sale or other disposition of collateral, any such requirement imposed at the time in question by then applicable law and which may not be waived by Guarantor, and Guarantor agreeing, with respect to any such sale or other disposition to which SECTION 9.504(c) of the Texas Business and Commerce Code or other similar provision of applicable law, is determined to be applicable, that ten (10) days notice shall constitute reasonable notification; and provided that, except for any such requirement applicable to any sale or other disposition of any such collateral which may not be waived, no provision of this Guaranty shall be construed to limit or otherwise adversely affect Lender's absolute and discretionary rights, as set forth in this Guaranty, to release and/or otherwise deal or fail to deal with any such collateral without affecting or impairing Guarantor's liability hereunder);
(viii) any failure of Lender to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, or assignment terms of the Guaranteed Obligations or any part thereof, including any increase or decrease of any Loan Documentthe rate(s) of interest thereon; (b) supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Guaranteed Obligations or any part thereof, or any of the Loan Documents to which Guarantor is not a party or any release additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (c) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or change in the Guaranteed Obligations or any part thereof; (d) accept partial payments on the Guaranteed Obligations; (e) receive and hold additional security or guaranties for the Guaranteed Obligations or any part thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer and/or enforce any security or guaranties, and apply any security and direct the order or manner of sale thereof as Lender in its sole and absolute discretion may determine; (g) release any Person from any personal liability with respect to the Guaranteed Obligations or any part thereof; (h) settle, release on terms satisfactory to Lender or by operation of applicable Laws or otherwise liquidate or enforce any Guaranteed Obligations and any security or guaranty therefor in any manner, consent to the transfer of any security and bid and purchase at any sale; and/or (i) consent to the merger, change or any other action taken restructuring or refrained from being taken by Lender against termination of the limited liability company existence or other existence of Borrower or any security or other recourse or guarantor of any new agreement between Lender the Loan, and 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 correspondingly restructure the Guaranteed Obligations, and any and all rights to notice such merger, change, restructuring or termination shall not affect the liability of Guarantor may have otherwise had being hereby waived by Guarantor (excepting only any notice, if any, required at or the time in question by then-applicable law and not waivable by Guarantor);
(ix) 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;
(x) the existence of any claim, set-offcontinuing effectiveness hereof, or other right that Guarantor may at any time have against Borrower, Lender, or any other Person (hereinafter defined), whether or not arising in connection the enforceability hereof with this Guaranty, the Note, the Loan Agreement, or any other Loan Document (provided that nothing contained herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim); or
(xi) the unenforceability of respect to all or any part of the Guaranteed Obligations Obligations. Upon the occurrence and during the continuance of any Default, Lender may enforce this Guaranty independently as to Guarantor and independently of any other remedy or security Lender at any time may have or hold in connection with the Guaranteed Obligations. Guarantor expressly waives any right to require Lender to marshal assets in favor of Borrower, and agrees that Lender may proceed against Borrower, or against any other guarantor of the Loan, or upon or against any security or remedy, before proceeding to enforce this Guaranty, in such order as Lender shall determine in its sole and absolute discretion. Lender may file a separate action or actions against Borrower and/or any other guarantor of the Loan without respect to whether because action is brought or prosecuted with respect to any security or against any other person or entity, or whether any other person or entity is joined in any such action or actions. Guarantor agrees that Lender and Borrower or any other guarantor of the Loan may deal with each other in connection with the Guaranteed Obligations exceed the amount permitted by law or violate any usury lawotherwise, or because alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the act security of creating this Guaranty. Lender’s rights hereunder shall be reinstated and revived, and the enforceability of this Guaranty shall continue, with respect to any amount at any time paid on account of the Guaranteed Obligations which thereafter shall be required to be restored or returned by Lender upon the bankruptcy, insolvency or reorganization of Borrower or any other guarantor of the Loan, all as though such amount had not been paid. The rights of Lender created or granted herein and the enforceability of this Guaranty with respect to Guarantor at all times shall remain effective to guaranty the full amount of all the Guaranteed Obligations, even though the Guaranteed Obligations, or any part thereof, is ULTRA XXXXXor any security or guaranty therefor, may be or because the officers hereafter may become invalid or 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 Borrower has any valid defense, claim or offset with respect thereto, or because 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 otherwise unenforceable as against Borrower or any other Person be found guarantor of the Loan or surety and whether or not liable on the Guaranteed Obligations, Borrower or any part thereof, for other guarantor of the Loan shall have any personal liability with respect thereto. Guarantor expressly waives any and all defenses now or hereafter arising or asserted by reason of (and regardless of a) any joinder disability or other defense of Borrower or any other party guarantor of the Loan with respect to the Guaranteed Obligations, (b) the unenforceability or invalidity of any security or guaranty for the Guaranteed Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations, (c) the cessation for any cause whatsoever of the liability of Borrower or any other guarantor of the Loan (other than by reason of the full payment and performance of all Guaranteed Obligations), (d) any failure of Lender to marshal assets in favor of Borrower or any other guarantor of the Loan, (e) except as otherwise provided in this Guaranty, any failure of Lender to give notice of sale or other disposition of any collateral securing any Guaranteed Obligation to Guarantor or any other person or entity or any defect in any action to obtain payment notice that may be given in connection with any sale or performance disposition of any collateral securing any Guaranteed Obligation, (f) any failure of Lender to comply with applicable Laws in connection with the sale or other disposition of any collateral securing any Guaranteed Obligation or other security for any Guaranteed Obligation, including without limitation, any failure of Lender to conduct a commercially reasonable sale or other disposition of any collateral securing any Guaranteed Obligation or other security for any Guaranteed Obligation, (g) any act or omission of Lender or others that directly or indirectly results in or aids the discharge or release of Borrower or any other guarantor of the Loan or the Guaranteed Obligations or any security or guaranty therefor by operation of law or otherwise, (h) any Law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation, (i) any failure of Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any person or entity, (j) the election by Lender, in any bankruptcy proceeding of any person or entity, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (k) any extension of credit or the grant of any lien under Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, (l) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (m) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (n) the avoidance of any lien in favor of Lender for any reason, (o) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any person or entity, including any discharge of, or bar or stay against collecting, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding, or (p) any action taken by Lender that is authorized by this Section or any other provision of any Loan Document. Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations), and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations.
(b) In the event any payment by Borrower or any other party Person to Lender Administrative Agent 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 is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender Administrative Agent 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 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 paid by Lender Administrative Agent to another party Person (except Guarantor) (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by Lender Administrative Agent and any reasonable attorneys' ’ fees, costs and expenses paid or incurred by Lender Administrative Agent 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 and 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 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 (the “Post Payment and Performance 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 Administrative Agent hereunder.
(c) If acceleration of the time for payment of any amount payable by Borrower under the NoteNotes, the Loan Agreement, or any other Loan Document (other than this Guaranty) is stayed or delayed by any Law law or Tribunaltribunal, all such amounts shall nonetheless be payable by Guarantor on demand by LenderAdministrative Agent.
(d) Guarantor waives: (i) to the extent permitted in paragraph 40.495(4) of the Nevada Revised Statutes (“NRS”), the benefits of the one-action rule under NRS Section 40.430, and (ii) to the extent permitted by NRS 104.3605, discharge under NRS 104.3605(9).
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Samples: Guaranty Agreement (MGM Mirage)
