Guaranty Obligations Unconditional. (a) The obligations of the Trust under Section 22.1 constitute a present and continuing guaranty of payment and not collectibility and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above: i. any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes; ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof; iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them; iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement; v. any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company; vi. any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement; vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement; viii. any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or ix. any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations). (b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations. (c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid. (d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demand. (e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Appears in 1 contract
Samples: Note Purchase Agreement (RPT Realty)
Guaranty Obligations Unconditional. (a) The obligations of the Trust under Section 22.1 constitute a present and continuing guaranty of payment and not collectibility collectability and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demand.
(e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Appears in 1 contract
Samples: Note Purchase Agreement (RPT Realty)
Guaranty Obligations Unconditional. (a) The Each Guarantor shall perform its obligations of under the Trust under Section 22.1 constitute a present and continuing guaranty of payment and not collectibility and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee the Harvard Obligations so furnished or accepted for any of the Notes;
ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly they are paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same strictly in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demandLoan Documents.
(eb) The guarantee in Section 22.1 Without limiting the foregoing, this Guaranty is a continuing guarantee guaranty of payment by each Guarantor, and not merely a guaranty of collection, and shall apply not be affected in any way by the absence of, or conditioned or contingent upon, any action to the Guaranteed Obligations whenever arising. Each default in the obtain payment or performance of any of the Guaranteed Harvard Obligations (by way of setoff or otherwise) from Harvard or any other Person who now or hereafter may be responsible for all or any part of the Harvard Obligations, including any other Guarantor or any Borrower, or from any Collateral or other property, and each Guarantor specifically waives any argument or defense that the Beneficiaries or any of them make, seek or exhaust any recourse of any nature, including any right to realize as to security held, against any other Person before making demands under this Guaranty. In addition, this Guaranty shall give be absolute and unconditional irrespective of:
(i) any change in, or in the interpretation or application of, the law in any jurisdiction which affects or purports to affect any of the terms giving rise to any of the Harvard Obligations or the rights of any Beneficiary with respect thereto;
(ii) any lack of validity or enforceability, any irregularity, default or omission in any relevant documentation, including, without limitation, any Loan Document, of any of the Harvard Obligations, or any delay, failure or omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise of any right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or reorganization of any Beneficiary, Harvard, any other Obligor or any other Person);
(iii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Loan Documents;
(iv) any exchange or release of, or non-perfection of any lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any other guaranty or security, for all or any of the Harvard Obligations or any release of any Borrower or any other Guarantor from all or any part of its obligations under this Guaranty, any other part of this Agreement or any of the terms of any other Loan Document;
(v) any claim, set-off, counterclaim, defense or other rights, including, without limitation, any as to marshalling of any security or other guaranties that any Obligor may have at any time and from time to time against any Beneficiary or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction;
(vi) the merger, consolidation or amalgamation of Harvard with or into any other Person or the loss by Harvard or any other Guarantor of its separate claim legal identity, or its ceasing to exist; or
(vii) any other circumstances which might otherwise constitute a defense based on suretyship or otherwise available to, or a discharge of, any other Obligor or any other Guarantor in respect of (A) the Harvard Obligations or the Guaranty Obligations, (B) the release of or waiver of any rights against any other Obligor and cause the settlement, compromise or release of action hereunderany other Obligor, or (C) the failure by any Beneficiary to attempt, or delay by it in attempting, to collect any Guaranty Obligations from any other Guarantor or any Obligations from any Borrower or to realize upon any Collateral; and the Beneficiaries may deal with Harvard, and separate claims any of the Obligors as it sees fit without prejudice to or suits may be made effect on this Guaranty or the security for the Guaranty Obligations; and broughteach Guarantor hereby irrevocably waives all defenses that it might otherwise have based on any of the matters identified above in this Paragraph 16.2 or based on any other circumstances other than, as in each case, the case may befull, hereunder as each final and indefeasible payment of all Harvard Obligations and all Guaranty Obligations of such default occursGuarantor.
Appears in 1 contract
Samples: Secured Debtor in Possession Financing Agreement (Harvard Industries Inc)
Guaranty Obligations Unconditional. (a) The Each Guarantor shall perform its obligations under this Guaranty in respect of the Trust under Section 22.1 constitute Harvard Obligations so that they are paid strictly in accordance with the terms of the Loan Documents.
(b) Without limiting the foregoing, this Guaranty is a present and continuing guaranty of payment by each Guarantor, and not collectibility merely a guaranty of collection, and are absoluteshall not be affected in any way by the absence of, unconditional and irrevocableor conditioned or contingent upon, irrespective any action to obtain payment of the value, genuineness, validity, regularity any of Harvard Obligations (by way of setoff or enforceability of the obligations of the Company under this Agreement, the Notes otherwise) from Harvard or any other agreement Person who now or instrument referred hereafter may be responsible for all or any part of the Harvard Obligations, including any other Guarantor or any Company, or from any Collateral or other property and each Guarantor specifically waives any argument or defense that the Lender seek or exhaust any recourse of any nature, including, without limitation, any right to herein realize as to security held, against any other Person before making demands under this Guaranty. In addition, this Guaranty shall be absolute and unconditional irrespective of:
(i) any change in, or thereinin the interpretation or application of, the law in any jurisdiction which affects or purports to affect any of the terms giving rise to any of the Harvard Obligations or the rights of the Lender with respect thereto;
(ii) any lack of validity or enforceability, any irregularity, default or omission in any relevant documentation, including, without limitation, any Loan Document, or of any of the Harvard Obligations, or any substitutiondelay, release failure or exchange omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise of any Guaranty right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or security for reorganization of Harvard, any other Obligor or any other Person);
(iii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Guaranteed ObligationsLoan Documents;
(iv) any exchange or release of, andor non-perfection of any Lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any other guaranty or security, for all or any of the fullest extent permitted by applicable lawHarvard Obligations or any release of any Obligor from all or any part of its obligations under this Guaranty, irrespective any other part of this Financing Agreement or any of the terms of any other circumstance whatsoever Loan Document;
(v) any claim, set-off, counterclaim, defense or other rights, including, without limitation, any as to marshalling of any security or other guaranties, that any Guarantor may have at any time and from time to time against the Lender or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction;
(vi) any other circumstances which might otherwise constitute a legal defense based on suretyship or equitable otherwise available to, or a discharge of, any other Obligor in respect of (A) the Harvard Obligations or defense the Guaranty Obligations, (B) the release of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence waiver of any one rights against any other Obligor and the settlement, compromise or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. any amendment or modification release of any provision of this Agreement other Obligor, or (C) the failure by the Lender to attempt, or delay by the Lender in attempting, to collect any Guaranty Obligations from any other than Section 22.1 Guarantor or 22.2), any Obligations from any Company or to realize upon any Collateral; and the Lender may deal with any of the Notes Obligors as it sees fit without prejudice to or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation effect on the renewal or extension of the time of payment of any of the Notes Guaranty or the granting security for the Guaranty Obligations; or
(vii) the merger, consolidation or amalgamation of time in respect of such payment thereof, Harvard with or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or into any other Person or the properties or creditors of any of them;
iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes loss by Harvard or any other agreement;
v. any transfer Obligor of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality ofits separate legal identity, or inability its ceasing to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. any default, failure or delay, willful or otherwise, exist; and each Guarantor hereby irrevocably waives all defenses that it might otherwise have based on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty matters identified above in this Paragraph 14.2(b) or based on any other agreement;
viii. any lack or limitation of status or of powercircumstances other than, incapacity or disability of in each case, the Companyfull, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the final and indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest all Harvard Obligations and all notices whatsoever and any requirement that any holder Guaranty Obligations of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligationssuch Guarantor.
(c) In the event that the Trust This Guaranty is a continuing guaranty and shall at any time pay any amount on account of the Guaranteed Obligations or take any other action remain in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes full force and the Trust hereby waives all rights it may have effect in relation to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and each Guarantor until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full and indefeasible satisfaction of (i) all the Harvard Obligations and (ii) all of such Guarantor's Guaranty Obligations. This Guaranty shall continue to be effective or shall be reinstated, as the case may require, if at any time any payment, or any part thereof, of any of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company Harvard Obligations is rescinded or must otherwise be otherwise restored returned by any holder of a Notethe Lender upon the insolvency, whether as a result bankruptcy, dissolution, liquidation or reorganization of any proceedings in bankruptcy or reorganization Obligor or otherwise, all as though such amount payment had not been paidmade. This Guaranty shall not be affected by any change in status, of any kind, of any Obligor or of the Lender.
(d) If an event permitting Each Guarantor confirms that there has been no agreement, promise, representation or stipulation by any Person which in any way affects the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demandGuaranties hereunder.
(e) The guarantee in Section 22.1 is a continuing guarantee Without the necessity of any reservation of rights against any Obligor and shall apply without notice to the Guaranteed Obligations whenever arising. Each default in the or further assent by any Obligor, any demand for payment or performance of any of the Guaranteed Harvard Obligations shall give rise made by the Lender to a separate claim and cause of action hereunder, and separate claims or suits any Guarantor may be made rescinded by the Lender and brought, as any of the case may be, hereunder as each Harvard Obligations continued after such default occursrescission.
Appears in 1 contract
Guaranty Obligations Unconditional. (a) The Each Guarantor shall perform its obligations under the Guaranty in respect of the Trust under Section 22.1 constitute Harvard Obligations so that they are paid strictly in accordance with the terms of the Loan Documents.
(b) Without limiting the foregoing, this Guaranty is a present and continuing guaranty of payment by each Guarantor, and not collectibility merely a guaranty of collection, and are absoluteshall not be affected in any way by the absence of, unconditional and irrevocableor conditioned or contingent upon, irrespective any action to obtain payment of any of the value, genuineness, validity, regularity Harvard Obligations (by way of setoff or enforceability of the obligations of the Company under this Agreement, the Notes otherwise) from Harvard or any other agreement Person who now or instrument referred hereafter may be responsible for all or any part of the Harvard Obligations, including any other Guarantor or any Company, or from any Collateral or other property, and each Guarantor specifically waives any argument or defense that the Beneficiaries or any of them make, seek or exhaust any recourse of any nature, including any right to herein realize as to security held, against any other Person before making demands under this Guaranty. In addition, this Guaranty shall be absolute and unconditional irrespective of:
(i) any change in, or thereinin the interpretation or application of, the law in any jurisdiction which affects or purports to affect any of the terms giving rise to any of the Harvard Obligations or the rights of any Beneficiary with respect thereto;
(ii) any lack of validity or enforceability, any irregularity, default or omission in any relevant documentation, including, without limitation, any Loan Document, of any of the Harvard Obligations, or any substitutiondelay, release failure or exchange omission to enforce or agreement not to enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise of any Guaranty right with respect to the foregoing (including, in each case, without limitation, as a result of the insolvency, bankruptcy or security for reorganization of any Beneficiary, Harvard, any other Obligor or any other Person);
(iii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Guaranteed ObligationsLoan Documents;
(iv) any exchange or release of, andor non-perfection of any lien on or in, any Collateral, any release or amendment or waiver of or consent to any departure from any other guaranty or security, for all or any of the fullest extent permitted by applicable lawHarvard Obligations or any release of any Company or any other Guarantor from all or any part of its obligations under this Guaranty, irrespective any other part of this Financing Agreement or any of the terms of any other circumstance whatsoever Loan Document;
(v) any claim, set-off, counterclaim, defense or other rights, including, without limitation, any as to marshalling of any security or other guaranties that any Obligor may have at any time and from time to time against any Beneficiary or any other Person, whether in connection with the transactions contemplated in the Loan Documents or any other transaction;
(vi) the merger, consolidation or amalgamation of Harvard with or into any other Person or the loss by Harvard or any other Guarantor of its separate legal identity, or its ceasing to exist; or
(vii) any other circumstances which might otherwise constitute a legal defense based on suretyship or equitable otherwise available to, or a discharge of, any other Obligor or defense any other Guarantor in respect of a surety (A) the Harvard Obligations or guarantorthe Guaranty Obligations, it being (B) the intent release of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence or waiver of any one rights against any other Obligor and the settlement, compromise or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. any amendment or modification release of any provision of this Agreement other Obligor, or (C) the failure by any Beneficiary to attempt, or delay by it in attempting, to collect any Guaranty Obligations from any other than Section 22.1 Guarantor or 22.2)any Obligations from any Company or to realize upon any Collateral; and the Beneficiaries may deal with Harvard, and any of the Notes Obligors as it sees fit without prejudice to or any Subsidiary Guaranty, effect on this Guaranty or any assignment or transfer thereof, including without limitation the renewal or extension of security for the time of payment of Guaranty Obligations; and each Guarantor hereby irrevocably waives all defenses that it might otherwise have based on any of the Notes matters identified above in this Paragraph 17.02 or based on any other circumstances other than, in each case, the granting full, final and indefeasible payment of time in respect all Harvard Obligations and all Guaranty Obligations of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed ObligationsGuarantor.
(c) In the event that the Trust This Guaranty is a continuing guaranty and shall at any time pay any amount on account of the Guaranteed Obligations or take any other action remain in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes full force and the Trust hereby waives all rights it may have effect in relation to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and each Guarantor until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full and indefeasible satisfaction of (i) all the Harvard Obligations and (ii) all of such Guarantor's Guaranty Obligations. This Guaranty shall continue to be effective or shall be reinstated, as the case may require, if at any time any payment, or any part thereof, of any of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company Harvard Obligations is rescinded or must otherwise be otherwise restored returned by any holder Beneficiary upon the insolvency, bankruptcy, dissolution, liquidation or 123 reorganization of a Note, whether as a result of Harvard or any proceedings in bankruptcy or reorganization Guarantor or otherwise, all as though such amount payment had not been paidmade. This Guaranty shall not be affected by any change in status, of any kind, of Harvard, any Company or any Guarantor or of any Beneficiary.
(d) If an event permitting Without the acceleration necessity of any reservation of rights against any Obligor and without notice to or further assent by any Obligor, any demand for payment of any of the maturity Harvard Obligations made by any Beneficiary to any Guarantor may be rescinded by such Beneficiary and any of the principal amount of the Notes shall at any time have occurred and be continuing and Harvard Obligations continued after such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demandrescission.
(e) The guarantee Each Guarantor confirms there has been no agreement, promise, representation or stipulation by any Person which in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment any way affects this Guaranty or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occursits Guaranty Obligations.
Appears in 1 contract
Guaranty Obligations Unconditional. (a) The obligations of the Trust under Section 22.1 constitute a present and continuing guaranty of payment and not collectibility collectability and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. .’ Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. any other thing, event, happening, matter, circumstance or condition whatsoever, whatsoever not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demand.
(e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Appears in 1 contract
Samples: Note Purchase Agreement (RPT Realty)
Guaranty Obligations Unconditional. (a) The obligations of the Trust under Section 22.1 22,1 constitute a present and continuing guaranty of payment and not collectibility collectability and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. (1) any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. (2) any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise non‑exercise of any right, remedy or power in respect hereof or thereof;
iii. (3) any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. (4) the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. (5) any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. (6) any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. (7) any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. (8) any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. (9) any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts Make‑Whole Amount and any other amounts guaranteed hereunder without further notice or demand.
(e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Appears in 1 contract
Samples: Note Purchase Agreement (RPT Realty)
Guaranty Obligations Unconditional. (a) The obligations of the Trust under Section 22.1 constitute a present and continuing guaranty of payment and not collectibility and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. (1) any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. (2) any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise non‑exercise of any right, remedy or power in respect hereof or thereof;
iii. (3) any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. (4) the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. (5) any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. (6) any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. (7) any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. (8) any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. (9) any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts Make‑Whole Amount and any other amounts guaranteed hereunder without further notice or demand.
(e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Appears in 1 contract
Samples: Note Purchase Agreement (Ramco Gershenson Properties Trust)
Guaranty Obligations Unconditional. (a) Each Guarantor hereby guarantees that the Outstanding Total Debt Obligations will be paid strictly in accordance with the terms of the Facility Documents, regardless of any Law now or hereafter in effect in any jurisdiction affecting any such terms or the rights of any Lender with respect thereto. The obligations and liabilities of the Trust each Guarantor under Section 22.1 constitute a present its Guaranty shall be absolute and continuing guaranty unconditional irrespective of: (1) any lack of payment and not collectibility and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity validity or enforceability of the obligations any of the Company under this AgreementOutstanding Total Debt Obligations, any Facility Documents, or any agreement or instrument relating thereto; (2) any change in the Notes time, manner or place of payment of, or in any other term in respect of, all or any of the Outstanding Total Debt Obligations, or any other agreement amendment or instrument referred waiver of or consent to herein any departure from any Facility Documents or thereinany other documents or instruments executed in connection with or related to the Outstanding Total Debt Obligations; (3) any exchange or release of, or non-perfection of any Lien on or in, any Collateral, or any substitution, release or exchange of any Guaranty amendment or waiver of or security consent to any departure from any other guaranty, for all or any of the Guaranteed Outstanding Total Debt Obligations, and, to the fullest extent permitted by applicable law, irrespective of ; or (4) any other circumstance whatsoever circumstances which might otherwise constitute a legal defense available to, or equitable a discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2)of, any of the Notes Borrower or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time other guarantor in respect of such payment thereof, or of any furnishing or acceptance of security the Outstanding Total Debt Obligations or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or Guarantor in respect of this Agreement, the Notes, any Guaranty. The Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing is a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment continuing guaranty and shall remain in full of the Guaranteed Obligations).
force and effect until: (b1) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of all the Guaranteed ObligationsOutstanding Total Debt Obligations (after the Maturity Date), and (2) the payment of the other expenses to be paid by the Guarantors pursuant hereto. This Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any amount shall be paid to the Trust on account time any payment, or any part thereof, of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is Outstanding Total Debt Obligations are rescinded or must otherwise be otherwise restored returned by any holder of a NoteLender upon the insolvency, whether as a result bankruptcy, dissolution, liquidation or reorganization of any proceedings in bankruptcy or reorganization Borrower or otherwise, all as though such amount payment had not been paid.
(d) If an event permitting made. The obligations and liabilities of each Guarantor under this Guaranty shall not be conditioned or contingent upon the acceleration of the maturity of the principal amount of the Notes shall at pursuit by any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company Lender or any other Person (at any time of any right or remedy against any Borrower or any other than Person which may be or become liable in respect of all or any part of the Trust as to itself) Outstanding Total Debt Obligations or against any Collateral or security or guarantee therefor or right of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees setoff with respect thereto. Each Guarantor hereby consents that, for purposes without the necessity of the guarantee in this Section 22 any reservation of rights against any Guarantor and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed without notice to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amountor further assent by any Guarantor, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demand.
(e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the demand for payment or performance of any of the Guaranteed Outstanding Total Debt Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits made by any Lender may be made rescinded by such Lender and brought, as any of the case may be, hereunder as each Outstanding Total Debt Obligations continued after such default occursrescission.
Appears in 1 contract
Guaranty Obligations Unconditional. (a) The obligations of the Trust under Section 22.1 constitute a present and continuing guaranty of payment and not collectibility and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the -58- Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. (1) any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. (2) any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. (3) any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. (4) the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. (5) any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. (6) any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. (7) any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. (8) any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. (9) any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts and any other amounts guaranteed hereunder without further notice or demand.
(e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Ramco Gershenson Properties Trust)
Guaranty Obligations Unconditional. (a) The obligations of the Trust under Section 22.1 22,1 constitute a present and continuing guaranty of payment and not collectibility collectability and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the Notes or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any Guaranty of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 22.2 that the obligations of the Trust hereunder shall be absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Trust hereunder which shall remain absolute, unconditional and irrevocable as described above:
i. any amendment or modification of any provision of this Agreement (other than Section 22.1 or 22.2), any of the Notes or any Subsidiary Guaranty, or any assignment or transfer thereof, including without limitation the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;
ii. any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement, the Notes, any Guaranty or any Subsidiary Guaranty, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
iii. any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company, any Subsidiary Guarantor or any other Person or the properties or creditors of any of them;
iv. the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the Notes or any other agreement;
v. any transfer of any assets to or from the Company, including without limitation any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Company with or into any Person, any change in the ownership of any shares of capital stock or other equity or ownership interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
vi. any default, failure or delay, willful or otherwise, on the part of the Company, any Subsidiary Guarantor or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
vii. any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company, any Subsidiary Guarantor or any other Person for any reason whatsoever, including without limitation any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, any of the Notes, any Guaranty, any Subsidiary Guaranty or any other agreement;
viii. any lack or limitation of status or of power, incapacity or disability of the Company, any Subsidiary Guarantor or any other Person providing a Guaranty of, or security for, any of the Guaranteed Obligations; or
ix. any other thing, event, happening, matter, circumstance or condition whatsoever, not in any way limited to the foregoing (other than the indefeasible payment in full of the Guaranteed Obligations).
(b) The Trust hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement or the Notes or any other agreement or instrument referred to herein or therein, or against any other Person under any other Guaranty of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Trust shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Trust shall not exercise any subrogation or other rights hereunder or under the Notes and the Trust hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been indefeasibly paid in full. Prior to the payment in full of the Guaranteed Obligations, if any amount shall be paid to the Trust on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. The Trust agrees that its obligations under this Section 22 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d) If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person (other than the Trust as to itself) of a case or proceeding under a bankruptcy or insolvency law, the Trust agrees that, for purposes of the guarantee in this Section 22 and the Trust’s obligations under this Agreement and the Guaranties, the maturity of the principal amount of the Notes shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Trust shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amounts Amount and any other amounts guaranteed hereunder without further notice or demand.
(e) The guarantee in Section 22.1 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising. Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Appears in 1 contract
Samples: Note Purchase Agreement (RPT Realty)
