Deemed Guaranty, Waivers. To the extent any of the obligations of any individual Borrower under this Agreement or the Loan Documents are deemed to constitute a guaranty, such individual Borrower unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder or under any Loan Document including: (i) any demand for payment or performance and protest and notice of protest, (ii) any notice of acceptance, (iii) any presentment, demand, protest or further notice or other requirements of any kind with respect to any guaranteed obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable, (iv) any other notice in respect of any guaranteed obligation or any part thereof, and (v) any defense arising by reason of any disability or other defense of any other Borrower. While the Obligations are outstanding, such individual Borrower further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against any other Borrower by reason of any Loan Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against any other Person or set off any of its obligations to such other Person against obligations of such other Person to any other Borrower. No obligation of such individual Borrower shall be discharged other than by complete performance or express written waiver. This is an unconditional and irrevocable waiver of any rights and defenses to which any individual Borrower may be entitled with respect to any of the obligations of such individual Borrower in the nature of a guaranty under the Revolving Credit Facilities, this Agreement or any other Loan Document arising from the fact that the obligations under the Revolving Credit Facilities are secured, in part, by real property. Each individual Borrower hereby waives all rights and defenses arising out of an election of remedies by Lenders, even though any such election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such individual Borrower’s rights of subrogation and reimbursement against any other Person. Such individual Borrower hereby waives and agrees not to assert any defense, whether arising in connection with or in respect of any of the following or otherwise, and hereby agrees that its obligations under this Agreement, even if deemed to be in the nature of a guaranty, are primary, irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected by any of the following (which may not be pleaded and evidence of which may not be introduced in any proceeding with respect to this Agreement, in each case except as otherwise agreed in writing by Administrative Agent): (i) the invalidity or unenforceability of any obligation of Borrowers under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver thereto), or any security for, or other guaranty of, any obligation hereunder or any part thereof, or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations or any part thereof; (ii) (A) any delay in enforcing or the absence of any action to enforce Borrowers’ Obligations, or (B) any attempt or the absence of any attempt to collect any obligation hereunder or any part thereof from Borrowers or other action to enforce the same; (iii) any sale, exchange, release, surrender or other disposition of, or realization upon, any collateral securing the Obligations, or any amendment, waiver, settlement or compromise of any guaranties of the Obligations, or any other obligation of any Person with respect to the Loan Documents; (iv) the failure by any Person to take any steps to perfect and maintain any lien on, or to preserve any rights with respect to, any Collateral; (v) any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation, dissolution or similar event or proceeding by or against Borrowers or any of their respective properties or any procedure, agreement, order, stipulation, election, action or omission thereunder, including any discharge or disallowance of, or bar or stay against collecting, any guaranteed obligation (or any interest thereon) in or as a result of any such proceeding; (vi) any foreclosure, whether or not through judicial sale, and any other Transfer of any Collateral or any election following the occurrence of an Event of Default by any Lender to proceed separately against any Collateral in accordance with such Lender’s rights under any applicable law; (vii) any other defense, setoff, counterclaim or any other circumstance that might otherwise constitute a legal or equitable discharge of any Borrower, Subsidiary of any Borrower, in each case other than the payment in full of the Obligations; (viii) the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy of any other Borrower; (ix) receipt by any Borrower of any notice or directive given at any time that is inconsistent with this Section 2.19; or (x) any renewal, amendment, modification or extension of this agreement or the other Loan Documents or any assignment or subletting or other changes or actions affecting the interest in the Collateral. This means, among other things: (i) Lenders may collect from such individual Borrower with respect to such obligation without first foreclosing on any Collateral pledged by any other Borrower and (ii) if Lenders foreclose on any Collateral pledged by any such individual Borrower: (A) the amount of the obligations under the Revolving Credit Facilities shall be reduced only by the price for which such Collateral is sold at the foreclosure sale, even if such Collateral is worth more than the sale price, and (B) Lenders may collect from such individual Borrower with respect to such obligation even if Lenders, by foreclosing on such Collateral, have destroyed any right such individual Borrower may have to collect from any other Loan Party.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Genesis Healthcare, Inc.), Credit Agreement (Genesis Healthcare, Inc.)
Deemed Guaranty, Waivers. To the extent any of the obligations of any individual Borrower under this Agreement or the Loan Documents are deemed to constitute a guaranty, such individual Borrower unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder or under any Loan Document including: (i) any demand for payment or performance and protest and notice of protest, (ii) any notice of acceptance, (iii) any presentment, demand, protest or further notice or other requirements of any kind with respect to any guaranteed obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable, (iv) any other notice in respect of any guaranteed obligation or any part thereof, and (v) any defense arising by reason of any disability or other defense of any other Borrower. While the Obligations are outstanding, such individual Borrower further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against any other Borrower by reason of any Loan Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against any other Person or set off any of its obligations to such other Person against obligations of such other Person to any other Borrower. No obligation of such individual Borrower shall be discharged other than by complete performance or express written waiver. This is an unconditional and irrevocable waiver of any rights and defenses to which any individual Borrower may be entitled with respect to any of the obligations of such individual Borrower in the nature of a guaranty under the Revolving Credit Facilities, this Agreement or any other Loan Document arising from the fact that the obligations under the Revolving Credit Facilities are secured, in part, by real property. Each individual Borrower hereby waives all rights and defenses arising out of an election of remedies by Lenders, even though any such election of remedies, such as a non-judicial foreclosure with respect to Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility) CHICAGO/#3103747.13103747.3A security for a guaranteed obligation, has destroyed such individual Borrower’s rights of subrogation and reimbursement against any other Person. Such individual Borrower hereby waives and agrees not to assert any defense, whether arising in connection with or in respect of any of the following or otherwise, and hereby agrees that its obligations under this Agreement, even if deemed to be in the nature of a guaranty, are primary, irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected by any of the following (which may not be pleaded and evidence of which may not be introduced in any proceeding with respect to this Agreement, in each case except as otherwise agreed in writing by Administrative Agent):
(i) the invalidity or unenforceability of any obligation of Borrowers under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver thereto), or any security for, or other guaranty of, any obligation hereunder or any part thereof, or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations or any part thereof;
(ii) (A) any delay in enforcing or the absence of any action to enforce Borrowers’ Obligations, or (B) any attempt or the absence of any attempt to collect any obligation hereunder or any part thereof from Borrowers or other action to enforce the same;
(iii) any sale, exchange, release, surrender or other disposition of, or realization upon, any collateral securing the Obligations, or any amendment, waiver, settlement or compromise of any guaranties of the Obligations, or any other obligation of any Person with respect to the Loan Documents;
(iv) the failure by any Person to take any steps to perfect and maintain any lien on, or to preserve any rights with respect to, any Collateral;
(v) any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation, dissolution or similar event or proceeding by or against Borrowers or any of their respective properties or any procedure, agreement, order, stipulation, election, action or omission thereunder, including any discharge or disallowance of, or bar or stay against collecting, any guaranteed obligation (or any interest thereon) in or as a result of any such proceeding;
(vi) any foreclosure, whether or not through judicial sale, and any other Transfer of any Collateral or any election following the occurrence of an Event of Default by any Lender to proceed separately against any Collateral in accordance with such Lender’s rights under any applicable law;
(vii) any other defense, setoff, counterclaim or any other circumstance that might otherwise constitute a legal or equitable discharge of any Borrower, Subsidiary of any Borrower, in each case other than the payment in full of the Obligations;
(viii) the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy of any other Borrower;
(ix) receipt by any Borrower of any notice or directive given at any time that is inconsistent with this Section 2.19; oror Second Amended and Restated Genesis Revolving Credit Agreement (HUD Facility) CHICAGO/#3103747.13103747.3A
(x) any renewal, amendment, modification or extension of this agreement or the other Loan Documents or any assignment or subletting or other changes or actions affecting the interest in the Collateral. This means, among other things: (i) Lenders may collect from such individual Borrower with respect to such obligation without first foreclosing on any Collateral pledged by any other Borrower and (ii) if Lenders foreclose on any Collateral pledged by any such individual Borrower: (A) the amount of the obligations under the Revolving Credit Facilities shall be reduced only by the price for which such Collateral is sold at the foreclosure sale, even if such Collateral is worth more than the sale price, and (B) Lenders may collect from such individual Borrower with respect to such obligation even if Lenders, by foreclosing on such Collateral, have destroyed any right such individual Borrower may have to collect from any other Loan Party.
Appears in 1 contract
Samples: Revolving Credit Agreement (Genesis Healthcare, Inc.)
Deemed Guaranty, Waivers. To the extent any of the obligations of any individual Borrower under this Agreement or the Loan Documents are deemed to constitute a guaranty, such individual Borrower unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder or under any Loan Document including: (i) any demand for payment or performance and protest and notice of protest, (ii) any notice of acceptance, (iii) any presentment, demand, protest or further notice or other requirements of any kind with respect to any guaranteed obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable, (iv) any other notice in respect of any guaranteed obligation or any part thereof, and (v) any defense arising by reason of any disability or other defense of any other Borrower. While the Obligations are outstanding, such individual Borrower further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against any other Borrower by reason of any Loan Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against any other Person or set off any of its obligations to such other Person against obligations of such other Person to any other Borrower. No obligation of such individual Borrower shall be discharged other than by complete performance or express written waiver. This is an unconditional and irrevocable waiver of any rights and defenses to which any individual Borrower may be entitled with respect to any of the obligations of such individual Borrower in the nature of a guaranty under the Revolving Credit Facilities, this Agreement or any other Loan Document arising from the fact that the obligations under the Revolving Credit Facilities are secured, in part, by real property. Each individual Borrower hereby waives all rights and defenses arising out of an election of remedies by Lenders, even though any such election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such individual Borrower’s rights of subrogation and reimbursement against any other Person. Such individual Borrower hereby waives and agrees not to assert any defense, whether arising in connection with or in respect of any of the following or otherwise, and hereby agrees that its obligations under this Agreement, even if deemed to be in the nature of a guaranty, are primary, irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected by any of the following (which may not be pleaded and evidence of which may not be introduced in any proceeding with respect to this Agreement, in each case except as otherwise agreed in writing by Administrative Agent):
(i) the invalidity or unenforceability of any obligation of Borrowers under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver thereto), or any security for, or other guaranty of, any obligation hereunder or any part thereof, or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations or any part thereof;
(ii) (A) any delay in enforcing or the absence of any action to enforce Borrowers’ Obligations, or (B) any attempt or the absence of any attempt to collect any obligation hereunder or any part thereof from Borrowers or other action to enforce the same;
(iii) any sale, exchange, release, surrender or other disposition of, or realization upon, any collateral securing the Obligations, or any amendment, waiver, settlement or compromise of any guaranties of the Obligations, or any other obligation of any Person with respect to the Loan Documents;
(iv) the failure by any Person to take any steps to perfect and maintain any lien on, or to preserve any rights with respect to, any Collateral;
(v) any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation, dissolution or similar event or proceeding by or against Borrowers or any of their respective properties or any procedure, agreement, order, stipulation, election, action or omission thereunder, including any discharge or disallowance of, or bar or stay against collecting, any guaranteed obligation (or any interest thereon) in or as a result of any such proceeding;
(vi) any foreclosure, whether or not through judicial sale, and any other Transfer of any Collateral or any election following the occurrence of an Event of Default by any Lender to proceed separately against any Collateral in accordance with such Lender’s rights under any applicable law;
(vii) any other defense, setoff, counterclaim or any other circumstance that might otherwise constitute a legal or equitable discharge of any Borrower, Subsidiary of any Borrower, in each case other than the payment in full of the Obligations;
(viii) the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy of any other Borrower;
(ix) receipt by any Borrower of any notice or directive given at any time that is inconsistent with this Section 2.19; or
(x) any renewal, amendment, modification or extension of this agreement or the other Loan Documents or any assignment or subletting or other changes or actions affecting the interest in the Collateral. This means, among other things: (i) Lenders may collect from such individual Borrower with respect to such obligation without first foreclosing on any Collateral pledged by any other Borrower and (ii) if Lenders foreclose on any Collateral pledged by any such individual Borrower: (A) the amount of the obligations under the Revolving Credit Facilities shall be reduced only by the price for which such Collateral is sold at the foreclosure sale, even if such Collateral is worth more than the sale price, and (B) Lenders may collect from such individual Borrower with respect to such obligation even if Lenders, by foreclosing on such Collateral, have destroyed any right such individual Borrower may have to collect from any other Loan Party.
Appears in 1 contract
Samples: Revolving Credit Agreement (Genesis Healthcare, Inc.)
