Subordinate Certificate Loss Coverage; Limited Guaranty Subject to subsection (c) below, prior to the later of the third Business Day prior to each Distribution Date or the related Determination Date, the Master Servicer shall determine whether it or any Sub-Servicer will be entitled to any reimbursement pursuant to Section 4.02(a) on such Distribution Date for Advances or Sub-Servicer Advances previously made, (which will not be Advances or Sub-Servicer Advances that were made with respect to delinquencies which were subsequently determined to be Excess Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses) and, if so, the Master Servicer shall demand payment from Residential Funding of an amount equal to the amount of any Advances or Sub-Servicer Advances reimbursed pursuant to Section 4.02(a), to the extent such Advances or Sub-Servicer Advances have not been included in the amount of the Realized Loss in the related Mortgage Loan, and shall distribute the same to the Class B Certificateholders in the same manner as if such amount were to be distributed pursuant to Section 4.02(a).
Loan Guaranty Each Loan Guarantor hereby agrees that it is jointly and severally liable for, and, as primary obligor and not merely as surety, and absolutely and unconditionally and irrevocably guarantees to the Administrative Agent for the ratable benefit of the Secured Parties the full and prompt payment upon the failure of any Borrower to do so, when and as the same shall become due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations (collectively the “Guaranteed Obligations”). Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. If any or all of the Guaranteed Obligations becomes due and payable hereunder, each Loan Guarantor, unconditionally and irrevocably, promises to pay such Guaranteed Obligations to the Administrative Agent and/or the other Secured Parties, on demand, together with any and all expenses which may be incurred by the Administrative Agent and the other Secured Parties in collecting any of the Guaranteed Obligations, to the extent reimbursable in accordance with Section 9.03. Each Loan Guarantor unconditionally and irrevocably guarantees the payment of any and all of the Guaranteed Obligations to the Secured Parties whether or not due or payable by any Borrower upon the occurrence of any of the Events of Default specified in Sections 7.01(f) or 7.01(g), and in such event, irrevocably and unconditionally promises to pay such indebtedness to the Secured Parties, on demand, in lawful money of the United States.
Closing Certificate; Certified Certificate of Incorporation; Good Standing Certificates The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, including the certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a long form good standing certificate for each Loan Party from its jurisdiction of organization.
Guaranty Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
Non-compliance Penalty Certificate If any Non-compliance Penalty arises, the Supplier Development Manager shall issue a Non-compliance Penalty Certificate 90 business days before the expiry of the contract indicating the Non-compliance Penalties which have accrued during that period.
Cross-Guaranty Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Guaranty Provisions (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by the Lender to the Borrower pursuant to the Master Loan Agreement, including any existing or future Supplements thereto, or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably (except as otherwise expressly provided in Subsection 3(k) below), completely and immediately guarantees the prompt payment of, when due, whether by acceleration or otherwise, and the prompt payment and performance of the Obligations;
(b) Guarantor further agrees to pay to the Lender, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred in attempting to cause the Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any Loan Document to which Guarantor is a party;
(c) Guarantor expressly guarantees any sum or sums which become due and owing to the Lender as a result of any order of a bankruptcy court which requires the Lender to turn over moneys paid by the Borrower, Guarantor or any other person to the Lender on account of the Obligations. Guarantor agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment by the Borrower or any other person to the Lender on account of the Obligations is rescinded or must otherwise be returned or restored upon the insolvency or bankruptcy of the Borrower or any other obligor, guarantor, endorser or surety of the Obligations, all as though such payment had not been made;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrower or any other guarantor of the Borrower with the Lender;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrower or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of the Lender’s rights or remedies against the Borrower or any other person, including any other guarantor; (iii) the release of the Borrower or any other person, including any other person guaranteeing any portion of the Obligations; (iv) the renewal, extension or modification of the terms of any of the Obligations or any instrument or agreement evidencing the same, including, without limitation, an increase in the principal amount of the Obligations; and (v) the acceptance by the Lender of other guaranties;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. The liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of any remedies against the Borrower or any other guarantor or person, nor against any security or lien available to the Lender, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrower or any other person or to require that resort be had to any security. In the event of a default under the Loan Documents, or any of them, the Lender shall have the right to enforce its rights, powers and remedies under any of the Loan Documents, in any order, and all rights, powers and remedies available to the Lender in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers the Lender upon acceleration or maturity of the Obligations or any other Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which the Lender may have or any right or remedy hereinafter granted which the Lender may have as to any security. Guarantor expressly waives any right to require any action on the part of the Lender to proceed to collect amounts due under the Master Loan Agreement or any other Loan Documents.
(h) Guarantor hereby subordinates any and all indebtedness of the Borrower now or hereafter owed to Guarantor to all obligations of the Borrower to the Lender, and agrees with the Lender that, from and after the occurrence of a default or event of default under any of the Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from any of the Borrower, shall not claim any offset or other reduction of Guarantor’s liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the Obligations; provided, however, that, if the Lender so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for the Lender and be paid over to the Lender on account of the Obligations of the Borrower to the Lender, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes the Lender, without notice to Guarantor, to apply all payments and credits received from the Borrower or from any guarantor or realized from any security in such manner and in such priority as the Lender in its sole judgment shall see fit to the Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by the Lender, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty or surety agreement, pledge, assignment, or other security for any of the Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice the Lender’s right to enforce such satisfaction. All of the Lender’s rights and remedies shall be cumulative and any failure of the Lender to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the Obligations are incurred until this Guaranty is terminated as provided in this Guaranty or is revoked by Guarantor prospectively as to future transactions, by written notice actually received by the Lender, and such revocation shall not be effective as to any indebtedness existing or committed for under the Master Loan Agreement or the other Loan Documents at the time of actual receipt of such notice by the Lender, or as to any renewals, extensions or refinancings thereof. Guarantor agrees to rely exclusively on the right to revoke this Guaranty prospectively as to future transactions, in accordance with this Subsection 3(k), if at any time, in the opinion of the directors or officers of Guarantor, the benefits then being received by Guarantor in connection with this Guaranty are not sufficient to warrant the continuance of this Guaranty as to future indebtedness. Accordingly, so long as this Guaranty is not revoked prospectively in accordance with this Subsection 3(k), the Lender may rely conclusively on a continuing warranty, hereby made, that Guarantor continues to be benefited by this Guaranty and the Lender and the Lender shall have no duty to inquire into or confirm that the receipt of any such benefits, and this Guaranty shall be effective and enforceable by the Lender without regard to the receipt, nature or value of any such benefits; and
(l) Until the Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of the Lender’s rights or remedies or participate in any security now or hereafter held by the Lender, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrower , or any other person having any manner of liability for the Borrower’s obligations to the Lender, whether or not arising hereunder, by agreement, at law or in equity.
Guaranty Agreement FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the agreement of Xxxxx X. Xxxxxxxx, (the "Developer") to permit deferral of the $160,000 due from 000 Xxxx Xxxx Limited Partnership a South Dakota limited partnership ("Debtor") to the Developer, the undersigned Guarantor(s), hereby unconditionally guarantees the full and prompt payment when due, whether by acceleration or otherwise of that certain Developer Fee from Debtor to the Developer, evidenced by the Development Fee Agreement dated the even date herewith, and incorporated herein by this reference. The foregoing described debt is referred to hereinafter as the "Liabilities" or "Liability." The undersigned further agree to pay all expenses paid or incurred by the Debtor or Developer in endeavoring to collect the Liabilities, or any part thereof, and in enforcing the Liabilities or this Guaranty Agreement (including reasonable attorneys' fees if collected or enforced by law or through an attorney-at-law). The undersigned hereby represents and warrants that the extension of credit or other financial accommodations by the Developer to Debtor will be to the interest and advantage of the undersigned, and acknowledges that this Guaranty Agreement is a substantial inducement to the Developer to extend credit to Debtor and that the Developer would not otherwise extend credit to Debtor. Debtor or Developer may, from time to time, without notice to or consent of the undersigned, (a) retain or obtain a security interest in any property to secure any of the Liabilities or any obligation hereunder, (b) retain or obtain the primary or secondary liability of any party or parties, in addition to the undersigned, with respect to any of the Liabilities and (c) resort to the undersigned for payment of any of the Liabilities, whether or not the Debtor or Developer shall have resorted to any property securing any of the Liabilities or any obligation hereunder or shall have preceded against any other party primarily or secondarily liable on any of the Liabilities. Debtor and Developer must mutually agree to (a) extend or renew for any period this Agreement (whether or not longer than the original period) or alter any of the Liabilities, (b) release or compromise any Liability of the undersigned hereunder or any Liability of any other party or parties primarily or secondarily liable on any of the Liabilities, or (c) release, compromise or subordinate its title or security interest, or any part thereof, if any, in all or any property now or hereafter securing any of the Liabilities or any obligation hereunder, and permit any substitution or exchange for any such property,
Closing Certificates; Certified Certificate of Incorporation; Good Standing Certificates The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Effective Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Loan Party authorized to sign the Loan Documents to which it is a party, and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management or partnership agreement, and (ii) a long form good standing certificate for each Loan Party from its jurisdiction of organization.
Continuing Guaranty; Assignments under the Credit Agreement This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (ii) the Maturity Date and (iii) the latest date of expiration, termination or Cash Collateralization or provision of Credit Support therefor of all Letters of Credit and the expiration or termination of all Secured Hedge Agreements, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Secured Parties and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any Secured Party may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party herein or otherwise, in each case as and to the extent provided in Section 10.07 of the Credit Agreement. Subject to Section 7.04 of the Credit Agreement, no Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Secured Parties.