Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documents, against Guarantor, Borrowers or any other Person, any right to require a proceeding first against Borrowers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder. (b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following: (i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property or any part thereof, Guarantor or any other Person; (ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto; (iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property or any interest therein; (iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure; (v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise; (vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or (vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers. (c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise. (d) Lender may deal with Borrowers and Affiliates of Borrowers in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder. (e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications. (f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity. (g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time. (h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers or any other Person, or any security for the obligations of Borrowers or any other Person. (i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made. (j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor. (k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 4 contracts
Samples: Guaranty of Recourse Obligations (Lodgian Inc), Guaranty of Recourse Obligations (Lodgian Inc), Guaranty of Recourse Obligations (Lodgian Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documents, against Guarantor, Borrowers or any other Person, any right to require a proceeding first against Borrowers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers and Affiliates of Borrowers in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers or any other Person, or any security for the obligations of Borrowers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 3 contracts
Samples: Guaranty of Recourse Obligations (Lodgian Inc), Guaranty of Recourse Obligations (Lodgian Inc), Guaranty of Recourse Obligations (Lodgian Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages Deeds of Trust or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers under the Note, the Loan Agreement, the Mortgages Deeds of Trust or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages Deeds of Trust or any other Loan Documents, against Guarantor, Borrowers or any other Person, any right to require a proceeding first against Borrowers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers and Affiliates of Borrowers in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages Deeds of Trust or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers in connection with or based upon the Note, the Loan Agreement, the Mortgages Deeds of Trust or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers or any other Person, or any security for the obligations of Borrowers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 2 contracts
Samples: Guaranty of Recourse Obligations (Lodgian Inc), Guaranty of Recourse Obligations (Lodgian Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents Document are modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paidportion of the Debt is outstanding, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 2 contracts
Samples: Collateral Transfer and Settlement Agreement (KBS Real Estate Investment Trust, Inc.), Collateral Transfer and Settlement Agreement (Gramercy Capital Corp)
Unconditional Character of Obligations of Guarantor. (a) 12.1. The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) 12.2. The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after as permitted in the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect theretoLoan Agreement, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosureforeclosure (i.e. dation en paiement);
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) 12.3. Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) 12.4. Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) 12.5. No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents Document are modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) 12.6. Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) 12.7. No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) 12.8. At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) 12.9. Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) 12.10. In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) 12.11. Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure (dation en paiement) or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 2 contracts
Samples: Limited Guaranty (Inland Real Estate Income Trust, Inc.), Limited Guaranty (Inland Real Estate Income Trust, Inc.)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, a Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against a Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, a Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents Document are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against any Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or a Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or a Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to a Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by a Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to a Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing Documents and Guarantor expressly agrees that to the contraryextent necessary to satisfy its obligations under Section 2 hereof, it shall be and remain liable for any deficiency remaining after foreclosure of any Mortgage or security interest securing the obligations and liabilities Note, notwithstanding provisions of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of law that may prevent the Obligations in accordance with Lender from enforcing such deficiency against the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.Borrower..
Appears in 2 contracts
Samples: Guaranty of Recourse Obligations (Behringer Harvard Reit I Inc), Guaranty of Recourse Obligations (Behringer Harvard Reit I Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, a Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against a Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, a Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against any Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or a Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or a Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to a Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by a Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to a Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing Documents and Guarantor expressly agrees that to the contraryextent necessary to satisfy its obligations under Section 2 hereof, it shall be and remain liable for any deficiency remaining after foreclosure of any Mortgage or security interest securing the obligations and liabilities Note, notwithstanding provisions of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of applicable law that may prevent the Obligations in accordance with Lender from enforcing such deficiency against the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall surviveBorrower.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Behringer Harvard Reit I Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any BorrowerBorrowers, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers or any other Person, any right to require a proceeding first against Borrowers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any BorrowerBorrowers, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower Borrowers or any Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower Borrowers or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers and Affiliates of Borrowers in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents Document are modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers or any other Person, or any security for the obligations of Borrowers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower Borrowers or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower Borrowers or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Supertel Hospitality Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Mezzanine Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Mezzanine Borrower under the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or any other Loan Documents Document or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Mezzanine Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Mezzanine Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Mezzanine Borrower or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers Mezzanine Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or any other Loan DocumentsDocument, against Guarantor, Borrowers Mezzanine Borrower or any other Person, any right to require a proceeding first against Borrowers Mezzanine Borrower or any other Person, or to exhaust any security (including, without limitation, the Collateral or Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Mezzanine Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
(b) The obligations of Guarantor under this Guaranty, and the rights of Mezzanine Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Mezzanine Borrower, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Mezzanine Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Mezzanine Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property Collateral Release after the date of a Release with respect theretothereof, the sale, transfer or conveyance of any Collateral or Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Collateral or Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Mezzanine Borrower or any Collateral or Property or any interest therein;
(iv) the conveyance to Mezzanine Lender, any Affiliate of Mezzanine Lender or Mezzanine Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Mezzanine Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Mortgage Lender of any remedies made available to Mezzanine any Mortgage Lender pursuant to the terms of the Mezzanine its respective Mortgage Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement Mortgages encumbering Mezzanine an applicable Mortgage Borrower's interest in any General Partner, any Member, and/or any Borrower Property except with respect to actions taken by the Mezzanine such Mortgage Lender following the Mezzanine Mortgage Lender succeeding to the interests of the Mezzanine Mortgage Borrowers in and to the Borrowersapplicable Properties.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Mezzanine Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Mezzanine Lender may deal with Borrowers Mezzanine Borrower and Affiliates of Borrowers Mezzanine Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Mezzanine Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Mezzanine Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Mezzanine Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Mezzanine Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Mezzanine Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Mezzanine Lender of any rights hereunder unless the same shall be in writing and signed by Mezzanine Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Mezzanine Lender or the obligations of Guarantor to Mezzanine Lender in any other respect or at any other time.
(h) At the option of Mezzanine Lender, Guarantor may be joined in any action or proceeding commenced by Mezzanine Lender against Borrowers Mezzanine Borrower in connection with or based upon the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Mezzanine Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Mezzanine Borrower or any other Person, or any security for the obligations of Borrowers Mezzanine Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Mezzanine Borrower or Guarantor to Mezzanine Lender and such payment is rescinded or must otherwise be returned by Mezzanine Lender (as determined by Mezzanine Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Mezzanine Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Mezzanine Borrower or any subsequent owner of any Property or Collateral or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Mezzanine Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Mezzanine Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Mezzanine Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Mezzanine Lender shall not have been fully paid, such amount shall be paid by Guarantor to Mezzanine Lender for credit and application against such sums due and owing to Mezzanine Lender. The foregoing shall not prohibit Borrowers Mezzanine Borrower from using the proceeds of the Loan for any permitted use under the Mezzanine Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property Collateral or any part thereof and the exercise by Mezzanine Lender of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents Repurchase Agreement or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any BorrowerSeller, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Seller under the Note, the Loan Agreement, the Mortgages or any other Loan Documents Repurchase Agreement or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender Buyer or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender Buyer may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Seller or any other Person at any time, either before or after an action against with respect to the Properties or any of them Purchased Assets or any part thereof, Borrowers Seller or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, Repurchase Agreement or the Loan Agreement, the Mortgages or any other Loan Transaction Documents, against Guarantor, Borrowers Seller or any other Person, any right to require a proceeding first against Borrowers Seller or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofPurchased Assets) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Seller or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender Buyer to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any BorrowerSeller, any Property the Purchased Assets or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender Buyer or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Repurchase Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property of the Purchased Assets or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property the Purchased Assets or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower Seller or any Property of the Purchased Assets or any interest therein;
(iv) the conveyance to LenderBuyer, any Affiliate of Lender Buyer or Lender's Buyer’s nominee of any Property of the Purchased Assets or any interest therein by a deedtransfer-in-lieu of foreclosureforeclosure or otherwise;
(v) the release of any Borrower Seller or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in the Repurchase Agreement or any of the Loan Transaction Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any Purchased Assets or any collateral for any or all the Guaranteed Obligations or for the Loan Transaction Obligations or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses (other than payment and performance) in an action brought by Lender Buyer to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender Buyer may deal with Borrowers Seller and Affiliates of Borrowers Seller in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Seller or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by LenderBuyer, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents Repurchase Agreement or any amendment, modification or other change of any legal requirement the Transaction Documents shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if the Repurchase Agreement or any Loan of the Transaction Documents are is modified with Lender's Buyer’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender Buyer may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender Buyer shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender Buyer of any rights hereunder unless the same shall be in writing and signed by LenderBuyer, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender Buyer or the obligations of Guarantor to Lender Buyer in any other respect or at any other time.
(h) At the option of LenderBuyer, Guarantor may be joined in any action or proceeding commenced by Lender Buyer against Borrowers Seller in connection with or based upon the Note, the Loan Agreement, the Mortgages Repurchase Agreement or any other Loan of the Transaction Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender Buyer first assert, prosecute or exhaust any remedy or claim against Borrowers Seller or any other Person, or any security for the obligations of Borrowers Seller or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Seller or Guarantor to Lender Buyer and such payment is rescinded or must otherwise be returned by Lender Buyer (as determined by Lender Buyer in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower Seller or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower Seller or any subsequent owner of any Property the Purchased Assets or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan DocumentsTransaction Obligations, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents Transaction Obligations have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Transaction Documents or any right to participate in any way therein, or in the right, title or interest of Lender Buyer in or to any collateral for the LoanPurchased Assets, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender Buyer of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan DocumentsTransaction Obligations. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender Buyer shall not have been fully paid, such amount shall be paid by Guarantor to Lender Buyer for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to GuarantorBuyer.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender Buyer of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full Repurchase Agreement or any of the Obligations in accordance with the terms of the Loan Transaction Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty (Resource Capital Corp.)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any BorrowerBorrowers, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers or any other Person, any right to require a proceeding first against Borrowers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any BorrowerBorrowers, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower Borrowers or any Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any the Any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower Borrowers or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers and Affiliates of Borrowers in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents Document are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers or any other Person, or any security for the obligations of Borrowers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower Borrowers or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower Borrowers or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Humphrey Hospitality Trust Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the existence in the Loan Documents of any so-called non-recourse provision or any other provision therein purporting to limit in whole or in part the recourse available against the Borrower, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing Documents and Guarantor expressly agrees that to the contraryextent necessary to satisfy its obligations under Section 2 hereof, it shall be and remain liable for any deficiency remaining after foreclosure of any Mortgage or security interest securing the obligations and liabilities Note, notwithstanding provisions of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of applicable law or the Loan Documents, provided, however, in Documents that may prevent the event that any Guaranteed Obligations or liabilities of Lender from enforcing such deficiency against the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall surviveBorrower.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Except as otherwise provided herein or in any of the other Loan Documents and to the extent permitted by law, Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower, any Non-Recourse Guarantor or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoeverwhatsoever (except to the extent expressly provided to the contrary in this Guaranty), and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderhereunder except as set forth in Section 2(b) above.
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property the Proxxxxx or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for Obligations, the Loan Property, the Loan, or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty Guarxxxx based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Subject to the Intercreditor Agreement, Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time frxx xxxe to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor Guarantied Obligations hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of the Plans or any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor Guarantied Obligations or Lender's rights hereunder, and Guarantor agrees that if any Loan Documents axx Xxxx Document are modified with Lender's consent, the Guaranteed Guaxxxxxxd Obligations shall shall, to the extent applicable, automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall waivxx xxall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower or any other Person in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Guarantied Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principalPrincipal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. For as long as the Loan is outstanding, Guarantor hereby expressly waives any and all of said rights of subrogation, reimbursement, indemnity and recourse. Guarantor shall not be deemed a "creditor" of the Borrower with respect to the Guarantied Obligations as said term "creditor" is defined in the United States Bankruptcy Code, as amended. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing Notwithstanding the foregoing, Guarantor shall not prohibit Borrowers from using have the proceeds right to be reimbursed by Borrower for any of Guarantor's out-of-pocket costs due Guarantor or fees pursuant to the Management Agreement or the Development Agreement provided there is no Event of Default under any of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to GuarantorDocuments.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Payment (Brookdale Living Communities Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Mezzanine Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Mezzanine Borrower under the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or any other Loan Documents Document or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Mezzanine Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Mezzanine Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Mezzanine Borrower or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers Mezzanine Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or any other Loan DocumentsDocument, against Guarantor, Borrowers Mezzanine Borrower or any other Person, any right to require a proceeding first against Borrowers Mezzanine Borrower or any other Person, or to exhaust any security (including, without limitation, the Collateral or Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Mezzanine Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
(b) The obligations of Guarantor under this Guaranty, and the rights of Mezzanine Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Mezzanine Borrower, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Mezzanine Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Mezzanine Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property Collateral Release after the date of a Release with respect theretothereof, the sale, transfer or conveyance of any Collateral or Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Collateral or Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Mezzanine Borrower or any Collateral or Property or any interest therein;
(iv) the conveyance to Mezzanine Lender, any Affiliate of Mezzanine Lender or Mezzanine Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Mezzanine Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Mortgage Lender of any remedies made available to Mezzanine any Mortgage Lender pursuant to the terms of the Mezzanine its Mortgage Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement Mortgages encumbering Mezzanine an applicable Mortgage Borrower's interest in any General Partner, any Member, and/or any Borrower Property except with respect to actions taken by the Mezzanine such Mortgage Lender following the Mezzanine Mortgage Lender succeeding to the interests of the Mezzanine Mortgage Borrowers in and to the Borrowersapplicable Properties.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Mezzanine Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Mezzanine Lender may deal with Borrowers Mezzanine Borrower and Affiliates of Borrowers Mezzanine Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Mezzanine Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Mezzanine Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Mezzanine Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Mezzanine Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Mezzanine Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Mezzanine Lender of any rights hereunder unless the same shall be in writing and signed by Mezzanine Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Mezzanine Lender or the obligations of Guarantor to Mezzanine Lender in any other respect or at any other time.
(h) At the option of Mezzanine Lender, Guarantor may be joined in any action or proceeding commenced by Mezzanine Lender against Borrowers Mezzanine Borrower in connection with or based upon the Note, the Mezzanine Loan Agreement, the Mortgages Pledge Agreement or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Mezzanine Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Mezzanine Borrower or any other Person, or any security for the obligations of Borrowers Mezzanine Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Mezzanine Borrower or Guarantor to Mezzanine Lender and such payment is rescinded or must otherwise be returned by Mezzanine Lender (as determined by Mezzanine Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Mezzanine Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Mezzanine Borrower or any subsequent owner of any Property or Collateral or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Mezzanine Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Mezzanine Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Mezzanine Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Mezzanine Lender shall not have been fully paid, such amount shall be paid by Guarantor to Mezzanine Lender for credit and application against such sums due and owing to Mezzanine Lender. The foregoing shall not prohibit Borrowers Mezzanine Borrower from using the proceeds of the Loan for any permitted use under the Mezzanine Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property Collateral or any part thereof and the exercise by Mezzanine Lender of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The obligations of the Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, setoff or counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documents, Document against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein part thereof and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's Lxxxxx’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender Lxxxxx to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender Lxxxxx may deal with Borrowers Bxxxxxxx and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by LenderLxxxxx, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by LenderLxxxxx, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of the Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have Debt has been indefeasibly paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to of the Loan or otherwise payable under the Loan DocumentsDebt. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by the Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Behringer Harvard Opportunity REIT I, Inc.)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted obligations under the Loan Agreement to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness obligations under the Loan Agreement and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal Principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principalPrincipal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principalPrincipal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The Subject to Section 3 above, the obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Manager, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower or Manager under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower, Manager, or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower, Manager, or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not a guaranty of collection. Except as otherwise provided herein or in any of the other Loan Documents or the Intercreditor Agreement, and to the extent permitted by law, Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower, Manager, or any other Person, any right to require a proceeding first against Borrowers Borrower, Manager or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Guarantied Obligations or any other obligations of Borrowers Borrower, Manager or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoeverwhatsoever (except to the extent expressly provided to the contrary in this Guaranty or elsewhere in the Loan Documents), and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderhereunder except as set forth in Section 2(f) above.
(b) The obligations of Guarantor under this GuarantyGuarantied Obligations, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Manager, the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender (except, however, a xxxxxxe by Lender to fund advances in accxxxxxxe with Section 3 hereof) or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the either Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower Borrower, Manager, or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or the Properxx xx any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower Borrower, Manager, or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral security for any or all Guaranteed the Guarantied Obligations or for the Loan or any portion thereof; or
(vii) Loan, including the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to Property and the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the BorrowersCollateral.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based Guarantx xxxed on claims of waiver, release, surrender, alteration alteration, compromise or compromise equitable discharge and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Subject to the Intercreditor Agreement, Lender may deal with Borrowers Borrower, Manager, and Affiliates of Borrowers Borrower or Manager in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower, Manager or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to xxxx xo time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunderGuarantied Obligations.
(e) No compromise, alteration, amendment, modification, extension, indulgence, renewal, release or other change of, or waiver, suspension, consent, compromise, delay, omission, failure to act act, forbearance or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of the Plans or any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor Guarantied Obligations or Lender's rights hereunder, and Guarantor anx Xxxxantor agrees that if any Loan Documents Document or the Plans are modified with Lender's consent, the Guaranteed Guaraxxxxx Obligations shall automatically be deemed modified to include such modificationsmodifications without the necessity of notice to Guarantor except as may otherwise be required under the Loan Agreement.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity. No single exercise of Lender's power to bring any acxxxx xr institute any proceeding shall be deemed to exhaust such power, but such power shall continue undiminished and may be exercised from time to time as often as Lender may elect until the earlier of the Guaranty Termination Date or the date that all the Guarantied Obligations have been satisfied. Lender shall be under no obligation to take any action and shall not be liable for any action taken or any failure to take action or any delay in taking action against Guarantor, Borrower, Manager, or any other Person or otherwise with respect to the Guarantied Obligations.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall xxxxx be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower or Manager in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor only to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower, Manager or any other Person, or any security for the obligations of Borrowers Borrower, Manager, or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower, Manager or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretionabsolutx xxxcretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower Borrower, Manager, or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Guarantied Obligations or in the event that for any reason whatsoever any Borrower if Borrower, Manager, or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principalPrincipal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. For so long as the Loan is outstanding, Guarantor hereby expressly waives any and all of said rights of subrogation, reimbursement, indemnity and recourse. Guarantor shall not be deemed a "creditor" of the Borrower with respect to the Guarantied Obligations as said term "creditor" is defined in the United States Bankruptcy Code, as amended. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing Notwithstanding the foregoing, Guarantor shall not prohibit Borrowers from using have the proceeds of the Loan right to be reimbursed by Borrower for any permitted use under of Guarantor's out-of-pocket costs or fees pursuant to the Loan Agreement, including, without limitation, Management Agreement or the making Development Agreement provided there is no Event of distributions to GuarantorDefault.
(k) Guarantor's obligations hereunder Subject to Section 2(f) hereof, the Guarantied Obligations shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Completion (Brookdale Living Communities Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documents, against Guarantor, Borrowers or any other Person, any right to require a proceeding first against Borrowers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers and Affiliates of Borrowers in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers or any other Person, or any security for the obligations of Borrowers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender Lenders in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be joint, several, irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers any Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender Administrative Agent or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender Administrative Agent may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers any Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers any Borrower or any other Person, any right to require a proceeding first against Borrowers any Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers any Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender Administrative Agent to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property the Collateral or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender Administrative Agent or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property the Collateral or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property the Collateral or any interest therein part thereof and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property the Collateral or any interest therein;
(iv) the termination or discharge of any Security Instrument, the exercise of any power of sale or any foreclosure or the conveyance to LenderAdministrative Agent, any Affiliate of Lender Administrative Agent or Lender's nominee any other Secured Party of any Property the Collateral or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or;
(vii) the exercise any action or inaction by Mezzanine Lender Administrative Agent or any other Secured Party under or in respect of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including any failure to exercise, or any delay in exercising, any rights or remedies Administrative Agent or any other Secured Party may have under this Guaranty or the other Loan Documents;
(viii) any modification, supplement, extension, consolidation, restatement, waiver or consent provided by Administrative Agent or any other Secured Party with respect to any of the Loan Documents, including, without limitation, foreclosure the grant of extensions of time for payment or similar remedies under performance;
(ix) the accuracy or inaccuracy of the representations and warranties made by any pledge agreement encumbering Mezzanine Borrower's interest , Guarantor or any other Person in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers Loan Documents; or
(x) the existence of any claim, setoff, counterclaim, defense or other rights which Guarantor may have against any Borrower, Administrative Agent or any other Secured Party or any other Person, whether in and to connection with the BorrowersLoan or any other transaction.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender Administrative Agent or any other Secured Party to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender Administrative Agent or any other Secured Party may deal with Borrowers any Borrower and Affiliates of Borrowers any Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers any Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by LenderAdministrative Agent or any other Secured Party, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's Administrative Agent or any other Secured Party’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender Administrative Agent or any other Secured Party may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender Administrative Agent or any other Secured Party shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender Administrative Agent of any rights hereunder unless the same shall be in writing and signed by LenderAdministrative Agent, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender Administrative Agent or any other Secured Party or the obligations of Guarantor to Lender Administrative Agent or any other Secured Party in any other respect or at any other time.
(h) At the option of LenderAdministrative Agent or any other Secured Party, Guarantor may be joined in any action or proceeding commenced by Lender Administrative Agent or any other Secured Party against Borrowers any Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender Administrative Agent or any other Secured Party first assert, prosecute or exhaust any remedy or claim against Borrowers any Borrower or any other Person, or any security for the obligations of Borrowers any Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers any Borrower or Guarantor to Lender Administrative Agent or any other Secured Party and such payment is rescinded or must otherwise be returned by Lender Administrative Agent or any other Secured Party (as determined by Lender Administrative Agent in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower Borrower, any other guarantor of all or any portion of the Loan, or any subsequent owner of any the Real Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender Administrative Agent or any other Secured Parties under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been indefeasibly paid in fullfull in cash. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender Administrative Agent or any other Secured Party in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender Administrative Agent and the other Secured Parties of payment in full in cash of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender Administrative Agent or any other Secured Party shall not have been fully paid, such amount shall be paid by Guarantor to Lender Administrative Agent for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using Administrative Agent and the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantorother Secured Parties.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Real Property or any part thereof and the exercise by Lender Administrative Agent or any other Secured Parties of any of or all of its their remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the NoteNotes, the Loan Agreement, the Mortgages Indenture or the other Loan Transaction Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any BorrowerIssuer, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers the Issuers under the NoteNotes, the Loan Agreement, the Mortgages Indenture or any other Loan Transaction Documents or Guarantor under this GuarantyGuaranty or the Pledge Agreement, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender the Indenture Trustee or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender The Indenture Trustee may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding under the Notes or any deficiency action against Borrowers the Issuers or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers Issuer or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the NoteNotes, the Loan Agreement, the Mortgages Indenture or any other Loan Transaction Documents, against Guarantor, Borrowers the Issuers or any other Person, any right to require a proceeding first against Borrowers the Issuers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers the Issuers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Transaction Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor it shall not be discharged of its obligations hereunder.
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender the Indenture Trustee to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrowerthe Issuers, any Property the Manager, the Collateral or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender the Indenture Trustee or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan AgreementIndenture, or any other Loan Transaction Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property Collateral or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property or any interest thereinCollateral;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower Issuer or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Transaction Documents by operation of law or otherwise;; or
(viv) the release in whole or in part of any collateral Collateral for any or all Guaranteed Obligations or for the Loan Notes or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender the Indenture Trustee to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender The Indenture Trustee may deal with Borrowers the Issuers and Affiliates of Borrowers in the same manner and Issuers as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers the Issuers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lenderthe Indenture Trustee, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages Indenture or the other Loan Transaction Documents or any amendment, modification or other change of any legal requirement requirement, shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Transaction Documents are modified with Lender's the Indenture Trustee’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender The Indenture Trustee may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender the Indenture Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender the Indenture Trustee of any rights hereunder unless the same shall be in writing and signed by Lenderthe Indenture Trustee, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender the Indenture Trustee or the obligations of Guarantor to Lender the Indenture Trustee in any other respect or at any other time.
(h) At the option of Lenderthe Indenture Trustee, Guarantor may be joined in any action or proceeding commenced by Lender the Indenture Trustee against Borrowers the Issuers in connection with or based upon the Note, the Loan Agreement, the Mortgages Indenture or any other Loan Transaction Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender the Indenture Trustee first assert, prosecute or exhaust any remedy or claim against Borrowers the Issuers or any other Person, or any security for the obligations of Borrowers the Issuers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers the Issuers or Guarantor to Lender the Indenture Trustee and such payment is rescinded or must otherwise be returned by Lender the Indenture Trustee (as determined by Lender the Indenture Trustee in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower Issuer or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower Issuer or any subsequent owner of any Property the Collateral or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lienLien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Indenture or other Transaction Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Indenture or other Transaction Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Transaction Documents or any right to participate in any way therein, or in the right, title or interest of Lender the Indenture Trustee in or to any collateral for the LoanNotes, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender the Indenture Trustee of payment in full of all principal, interest and other sums due with respect to the Loan Notes or otherwise payable under the Loan Indenture or other Transaction Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender the Indenture Trustee or the Servicer shall not have been fully paid, such amount shall be paid by Guarantor to Lender the Indenture Trustee or the Servicer, as applicable, for credit and application against such sums due and owing to Lenderthe Indenture Trustee or the Servicer, as applicable. The foregoing shall not prohibit Borrowers the Issuer from using the proceeds of the Loan Notes for any permitted use under the Loan AgreementIndenture, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property collateral for this Guaranty or any part thereof the Notes and the exercise by Lender the Indenture Trustee of any of or all of its remedies pursuant to the Loan Transaction Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The Subject to Section 2(d) above, the obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective . This Guaranty is a guaranty of the validity, regularity or enforceability, in whole or in part, performance and not a guaranty of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers or any other Person at any time, either before or after an action against the Properties or any of them or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documents, against Guarantor, Borrowers or any other Person, any right to require a proceeding first against Borrowers or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) for the performance of the Guaranteed Obligations or any other obligations of Borrowers or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereundercollection.
(b) The obligations of Guarantor under this GuarantyGuarantied Obligations, and the rights of Lender BPCA to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property Operator or any part thereof, Guarantor or any other PersonGuarantor;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property the Premises or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property the Premises or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower Operator, or any Property the Premises or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(viii) the release of any Borrower or any other Person Operator from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents Lease or the Escrow Agreement by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(viiiv) the exercise any remedy elected by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to BPCA under the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the BorrowersEscrow Agreement.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender BPCA arising hereunder to enforce this Guaranty based on claims of waiver, release, surrender, alteration alteration, compromise or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwiseequitable discharge.
(d) Lender BPCA may deal with Borrowers Operator, and Affiliates affiliates of Borrowers Operator in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Operator or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by LenderBPCA, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunderGuarantied Obligations.
(e) No compromise, alteration, amendment, modification, extension, indulgence, renewal, release or other change of, or waiver, suspension, consent, compromise, delay, omission, failure to act act, forbearance or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement Lease shall in any way alter, impair or affect any of the obligations of Guarantor Guarantied Obligations or BPCA's rights hereunder, and Guarantor agrees that if any Loan Documents provisions in Article 11 of the Lease relating to the construction of the Buildings are modified with LenderBPCA's consent, the Guaranteed Guarantied Obligations shall automatically be deemed modified to include such modificationsmodifications without the necessity of notice to Guarantor except as may otherwise be required under the Lease.
(f) Lender BPCA may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender BPCA shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Escrow Agreement or now or hereafter existing at law or in equity. No single exercise of BPCA's power to bring any action or institute any proceeding shall be deemed to exhaust such power, but such power shall continue undiminished and may be exercised from time to time as often as BPCA may elect until the earlier of the Guaranty Termination Date or the date that all the Guarantied Obligations have been satisfied. BPCA shall be under no obligation to take any action and shall not be liable for any action taken or any failure to take action or any delay in taking action against Guarantor, Operator, or any other Person or otherwise with respect to the Guarantied Obligations.
(g) No waiver shall be deemed to have been made by Lender BPCA of any rights hereunder unless the same shall be in writing and signed by LenderBPCA, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender BPCA or the obligations of Guarantor to Lender BPCA in any other respect or at any other time.
(h) At the option of LenderBPCA, Guarantor may be joined in any action or proceeding commenced by Lender BPCA against Borrowers Operator in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents Guaranteed Obligations and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor Guarantor, but only to the extent of Guarantor's liability hereunder, without any requirement that Lender BPCA first assert, prosecute or exhaust any remedy or claim against Borrowers Operator or any other Person, or any security for the obligations of Borrowers Operator, or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Operator or Guarantor to Lender BPCA with respect to the Guaranteed Obligations and such payment is rescinded or must otherwise be returned by Lender BPCA (as determined by Lender BPCA in its sole and absolute reasonable discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Completion (Brookdale Living Communities Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents Document are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Behringer Harvard Reit I Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
whatsoever (b) except to the extent expressly provided to the contrary in this Guaranty). The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) a. any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) b. any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, c. the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) d. the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) e. the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) f. the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) . Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) . Lender may deal with Borrowers Borrower, and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) . No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's ’s and Borrower’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) . Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) . No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) . At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) . Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) . In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Payment Guaranty (GTJ REIT, Inc.)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages Note or the other Loan Documents Fee Letter or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, Note or the Loan Agreement, the Mortgages or any other Loan Documents Fee Letter or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property (as defined in the Note) or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, Note or any other Loan DocumentsFee Letter, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of either the Loan Documents Note or the Fee Letter by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages Note or the other Loan Documents or any amendment, modification or other change of any legal requirement Fee Letter shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents either the Note or the Fee Letter are modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon either the Note, Note or the Loan Agreement, the Mortgages or any other Loan Documents Fee Letter and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan DocumentsNote or the Fee Letter, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents Note or the Fee Letter have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents Note or the Fee Letter or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan DocumentsNote or the Fee Letter. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding Note or the foregoing Fee Letter and Guarantor expressly agrees that to the contraryextent necessary to satisfy its obligations under Section 2 hereof, it shall be and remain liable for any deficiency remaining after foreclosure of any Mortgage or security interest securing the obligations and liabilities Note, notwithstanding provisions of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of law that may prevent the Obligations in accordance with Lender from enforcing such deficiency against the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.Borrower..
Appears in 1 contract
Samples: Payment Guaranty (Behringer Harvard Opportunity REIT I, Inc.)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of (1) the Plan of Reorganization (including, without limitation, the Disbursing Agreement and the Liquidating Trust Agreement), (2) the Mortgage Loan or any of the Underlying Loan Documents or (3) the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereofof (1), (2) or (3), or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any timetime or, after Borrower takes title to the Mortgaged Property, either before or after an a foreclosure action against the Properties or any of them Mortgaged Property or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documents, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties Collateral under each of the Security Agreement and the Stock Pledge Agreement, or any the Mortgaged Property after title of them or any part thereofsuch is transferred to Borrower) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoeverwhatsoever (except to the extent expressly provided to the contrary in this Guaranty), and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Collateral under the Security Agreement and the Stock Pledge Agreement, the Mortgaged Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Plan of Reorganization (including, without limitation, the Disbursing Agreement and the Liquidating Trust Agreement), the Underlying Loan AgreementDocuments, or the Loan Agreement or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Collateral under either of the Security Agreement or the Stock Pledge Agreement or, after title of such has been transferred to Borrower, the Mortgaged Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Collateral or the Mortgaged Property or any interest therein and whether or not pursuant to any enforcement action, foreclosure, trustee sale or similar proceeding against any Borrower Borrower, the Collateral or any the Mortgaged Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any the Mortgaged Property or any interest therein by a deed-in-lieu pursuant to the Plan of foreclosureReorganization;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Plan of Reorganization (including, without limitation, the Disbursing Agreement and the Liquidating Trust Agreement), the Underlying Loan Documents, or the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions ofof the Plan of Reorganization (including, without limitation, the Disbursing Agreement and the Liquidating Trust Agreement), the Mortgage Loan or any of the Underlying Loan Documents, the Note, the Loan Agreement, the Mortgages Agreement or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages Agreement or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding Documents and the foregoing transfer of title to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior Mortgaged Property to Borrower pursuant to the expiration Plan of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall surviveReorganization.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Resource America Inc)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender Party or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender Party may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against any of the Properties or any of them or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperties) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender Party to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property the Properties or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender Party or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property of the Properties or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property of the Properties or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property of the Properties or any interest therein;
(iv) the conveyance to LenderLender Party, any Affiliate of Lender Party or Lender's Lender Party’s nominee of any Property of the Properties or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender Party to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender Party may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by LenderLender Party, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents Document are modified with Lender's Lender Party’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender Party may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender Party shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender Party of any rights hereunder unless the same shall be in writing and signed by LenderLender Party, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender Party or the obligations of Guarantor to Lender Party in any other respect or at any other time.
(h) At the option of LenderLender Party, Guarantor may be joined in any action or proceeding commenced by Lender Party against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender Party first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender Party and such payment is rescinded or must otherwise be returned by Lender Party (as determined by Lender Party in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property of the Properties or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender Party under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender Party in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender Party of payment in full of all principal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender Party shall not have been fully paid, such amount shall be paid by Guarantor to Lender Party for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to GuarantorLender Party.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any Property or any part thereof of the Properties and the exercise by Lender Party of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, setoff or counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Collateral or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documents, Document against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofCollateral) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property the Collaterally Assigned Loan or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property the Collaterally Assigned Loan or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property the Collaterally Assigned Loan or any interest therein part thereof and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property the Collaterally Assigned Loan or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any Property the Collaterally Assigned Loan or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) Lender’s failure to record or file (or the exercise by Mezzanine imperfect recording or filing) UCC Financing Statements or any other failure of Lender of to perfect any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's security interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the BorrowersLoan.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion without impairing or otherwise affecting the other rights and remedies of Lender under this Guaranty or any other Loan Documents or as may be permitted by law or in equity and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property the Collaterally Assigned Loan or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have has been indefeasibly paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to of the Loan or otherwise payable under the Loan DocumentsLoan. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor hereby waives the pleading of any statute of limitations as a defense to its obligations and liabilities under this Guaranty.
(l) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deedassignment-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any Property or any part thereof the Collateral and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Franklin BSP Realty Trust, Inc.)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the existence in the Loan Documents of any so-called non-recourse provision or any other provision therein purporting to limit in whole or in part the recourse available against the Borrower, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's ’s nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's ’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing Documents and Guarantor expressly agrees that to the contraryextent necessary to satisfy its obligations under Section 2 hereof, it shall be and remain liable for any deficiency remaining after foreclosure of any Security Instrument or security interest securing the obligations and liabilities Note, notwithstanding provisions of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of applicable law or the Loan Documents, provided, however, in Documents that may prevent the event that any Guaranteed Obligations or liabilities of Lender from enforcing such deficiency against the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall surviveBorrower.
Appears in 1 contract
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers any Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender Administrative Agent or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender Administrative Agent may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers any Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers any Borrower or any other Person, any right to require a proceeding first against Borrowers any Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers any Borrower or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderwhatsoever (except to the extent expressly provided to the contrary in this Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender Administrative Agent to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property the Collateral or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender Administrative Agent or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property the Collateral or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property the Collateral or any interest therein part thereof and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property the Collateral or any interest therein;
(iv) the termination or discharge of any Security Instrument, the exercise of any power of sale or any foreclosure or the conveyance to LenderAdministrative Agent, any Affiliate of Lender Administrative Agent or Lender's nominee any other Secured Party of any Property the Collateral or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or;
(vii) the exercise any action or inaction by Mezzanine Lender Administrative Agent or any other Secured Party under or in respect of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including any failure to exercise, or any delay in exercising, any rights or remedies Administrative Agent or any other Secured Party may have under this Guaranty or the other Loan Documents;
(viii) any modification, supplement, extension, consolidation, restatement, waiver or consent provided by Administrative Agent or any other Secured Party with respect to any of the Loan Documents, including, without limitation, foreclosure the grant of extensions of time for payment or similar remedies under performance;
(ix) the accuracy or inaccuracy of the representations and warranties made by any pledge agreement encumbering Mezzanine Borrower's interest , Guarantor or any other Person in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers Loan Documents; or
(x) the existence of any claim, setoff, counterclaim, defense or other rights which Guarantor may have against any Borrower, Administrative Agent or any other Secured Party or any other Person, whether in and to connection with the BorrowersLoan or any other transaction.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender Administrative Agent or any other Secured Party to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender Administrative Agent or any other Secured Party may deal with Borrowers any Borrower and Affiliates of Borrowers any Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers any Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by LenderAdministrative Agent or any other Secured Party, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are Document is modified with Lender's Administrative Agent or any other Secured Party’s consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender Administrative Agent or any other Secured Party may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender Administrative Agent or any other Secured Party shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender Administrative Agent of any rights hereunder unless the same shall be in writing and signed by LenderAdministrative Agent, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender Administrative Agent or any other Secured Party or the obligations of Guarantor to Lender Administrative Agent or any other Secured Party in any other respect or at any other time.
(h) At the option of LenderAdministrative Agent or any other Secured Party, Guarantor may be joined in any action or proceeding commenced by Lender Administrative Agent or any other Secured Party against Borrowers any Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's ’s liability hereunder, without any requirement that Lender Administrative Agent or any other Secured Party first assert, prosecute or exhaust any remedy or claim against Borrowers any Borrower or any other Person, or any security for the obligations of Borrowers any Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers any Borrower or Guarantor to Lender Administrative Agent or any other Secured Party and such payment is rescinded or must otherwise be returned by Lender Administrative Agent or any other Secured Party (as determined by Lender Administrative Agent in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower Borrower, any other guarantor of all or any portion of the Loan, or any subsequent owner of any the Real Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender Administrative Agent or any other Secured Parties under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been indefeasibly paid in fullfull in cash. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender Administrative Agent or any other Secured Party in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender Administrative Agent and the other Secured Parties of payment in full in cash of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender Administrative Agent or any other Secured Party shall not have been fully paid, such amount shall be paid by Guarantor to Lender Administrative Agent for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using Administrative Agent and the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantorother Secured Parties.
(k) Guarantor's ’s obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Real Property or any part thereof and the exercise by Lender Administrative Agent or any other Secured Parties of any of or all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty Agreement (Hall of Fame Resort & Entertainment Co)
Unconditional Character of Obligations of Guarantor. (a) The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower or any other Person at any time, either before or after an action against the Properties or any of them Property or any part thereof, Borrowers Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONThis Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Except as otherwise provided herein or in any of the other Loan Documents and to the extent permitted by law, Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower or any other Person, any right to require a proceeding first against Borrowers Borrower or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereofProperty) for the performance of the Guaranteed Obligations or any other obligations of Borrowers Borrower, any Non-Recourse Guarantor or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoeverwhatsoever (except to the extent expressly provided to the contrary in this Guaranty), and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderhereunder except as set forth in Section 2(b) above.
(b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property the Prxxxxxx or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for Obligations, the Loan Property, the Loan, or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty Gxxxxxxy based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Subject to the Intercreditor Agreement, Lender may deal with Borrowers Borrower and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time fxxx xxme to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor Guarantied Obligations hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of the Plans or any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor Guarantied Obligations or Lender's rights hereunder, and Guarantor agrees that if any Loan Documents xxx Xxxx Document are modified with Lender's consent, the Guaranteed Guxxxxxxed Obligations shall shall, to the extent applicable, automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall waivex xxxxl be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower or any other Person in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower or any other Person, or any security for the obligations of Borrowers Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Guarantied Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any the Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest Interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principalPrincipal, interest Interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. For as long as the Loan is outstanding, Guarantor hereby expressly waives any and all of said rights of subrogation, reimbursement, indemnity and recourse. Guarantor shall not be deemed a "creditor" of the Borrower with respect to the Guarantied Obligations as said term "creditor" is defined in the United States Bankruptcy Code, as amended. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing Notwithstanding the foregoing, Guarantor shall not prohibit Borrowers from using have the proceeds right to be reimbursed by Borrower for any of Guarantor's out-of-pocket costs due Guarantor or fees pursuant to the Management Agreement or the Development Agreement provided there is no Event of Default under any of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to GuarantorDocuments.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Payment (Brookdale Living Communities Inc)
Unconditional Character of Obligations of Guarantor. (a) The Subject to Section 4, the obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any BorrowerBuyer, Guarantor or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Buyer under the Note, the Loan Agreement, the Mortgages or any other Loan Documents Purchase Agreement or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender Seller or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender Seller may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Buyer or any other Person at any time, either before or after an action against the Properties or any . This Guaranty is a guaranty of them or any part thereof, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTIONpayment and performance and not a guaranty of collection. Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan Documentsthis Guaranty, against Guarantor, Borrowers Buyer or any other Person, any right to require a proceeding first against Borrowers Buyer or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) Person for the performance of the Guaranteed Obligations or any other obligations of Borrowers Buyer or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoever, and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunder.
whatsoever (b) The obligations of Guarantor under this Guaranty, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower or any Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or Lender's nominee of any Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;
(vi) the release in whole or in part of any collateral for any or all Guaranteed Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding extent expressly provided to the interests of the Mezzanine Borrowers in and to the Borrowers.
(c) Except as otherwise specifically provided contrary in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration or compromise and all setoffs, reductions, or impairments, whether arising hereunder or otherwise).
(d) Lender may deal with Borrowers and Affiliates of Borrowers in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension, renewal, release or other change of, or waiver, consent, delay, omission, failure to act or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan Documents are modified with Lender's consent, the Guaranteed Obligations shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers or any other Person, or any security for the obligations of Borrowers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property or any part thereof is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums and of such indebtedness and all interest thereon shall at all times be subordinate as to the lien, the time of payment and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due with respect to the Loan or otherwise payable under the Loan Documents. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing shall not prohibit Borrowers from using the proceeds of the Loan for any permitted use under the Loan Agreement, including, without limitation, the making of distributions to Guarantor.
(k) Guarantor's obligations hereunder shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale or similar proceeding involving any Property or any part thereof and the exercise by Lender of any of all of its remedies pursuant to the Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty (Xo Communications Inc)
Unconditional Character of Obligations of Guarantor. (a) The Subject to Section 3 above, the obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, irrespective of the validity, regularity or enforceability, in whole or in part, of the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any provision thereof, or the absence of any action to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any Borrower, Guarantor Guarantor, or any other Person or any action to enforce the same, any failure or delay in the enforcement of the obligations of Borrowers Borrower under the Note, the Loan Agreement, the Mortgages or any other Loan Documents or Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of any other circumstances which might otherwise limit recourse against Guarantor by Lender or constitute a legal or equitable discharge or defense of a guarantor or surety. Lender may enforce the obligations of Guarantor under this Guaranty by a proceeding at law, in equity or otherwise, independent of any loan foreclosure or similar proceeding or any deficiency action against Borrowers Borrower, or any other Person at any time, either before . This Guaranty is a guaranty of payment and performance and not a guaranty of collection. Except as otherwise provided herein or after an action against the Properties or in any of them the other Loan Documents or any part thereofthe Intercreditor Agreement, Borrowers or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. and to the extent permitted by law, Guarantor waives diligence, notice of acceptance of this Guaranty, filing of claims with any court, any proceeding to enforce any provision of the Note, the Loan Agreement, the Mortgages or any other Loan DocumentsDocument, against Guarantor, Borrowers Borrower, or any other Person, any right to require a proceeding first against Borrowers Borrower, or any other Person, or to exhaust any security (including, without limitation, the Properties or any of them or any part thereof) for the performance of the Guaranteed Guarantied Obligations or any other obligations of Borrowers Borrower, or any other Person, or any protest, presentment, notice of default (except as may be expressly required under the Loan Documents) or other notice or demand whatsoeverwhatsoever (except to the extent expressly provided to the contrary in this Guaranty or elsewhere in the Loan Documents), and Guarantor hereby covenants and agrees that Guarantor shall not be discharged of its obligations hereunderhereunder except as set forth in Section 2(f) above.
(b) The obligations of Guarantor under this GuarantyGuarantied Obligations, and the rights of Lender to enforce the same by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower, any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without fault on its part, to perform or comply with any of the terms of the Loan Agreement, or any other Loan Documents, or any document or instrument relating thereto;
(iii) except (A) with respect to activities occurring after the date of a Permitted Assumption or, (B) activities relating to a Released Property after the date of a Release with respect thereto, the sale, transfer or conveyance of any the Property or any interest therein to any Person, whether now or hereafter having or acquiring an interest in any the Property or any interest therein and whether or not pursuant to any foreclosure, trustee sale or similar proceeding against any Borrower Owner, Manager, or any the Property or any interest therein;
(iv) the conveyance to Senior Lender, any Affiliate of Senior Lender or Senior Lender's nominee of any the Property or any interest therein by a deed-in-lieu of foreclosure;
(v) the release of any Borrower Borrower, or any other Person from the performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law or otherwise;; or
(vi) the release in whole or in part of any collateral security for any or all Guaranteed the Guarantied Obligations or for the Loan or any portion thereof; or
(vii) the exercise by Mezzanine Lender of any remedies made available to Mezzanine Lender pursuant to the terms of the Mezzanine Loan Documents, including, without limitation, foreclosure or similar remedies under any pledge agreement encumbering Mezzanine Borrower's interest in any General Partner, any Member, and/or any Borrower except with respect to actions taken by the Mezzanine Lender following the Mezzanine Lender succeeding to the interests of the Mezzanine Borrowers in and to the BorrowersLoan.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an action brought by Lender to enforce this Guaranty based on claims of waiver, release, surrender, alteration alteration, compromise or compromise equitable discharge and all setoffs, reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers and Affiliates of Borrowers Borrower in the same manner and as freely as if this Guaranty did not exist and shall be entitled, among other things, to grant Borrowers Borrower, or any other Person such extension or extensions of time to perform any act or acts as may be deemed advisable by Lender, at any time and from time to time, without terminating, affecting or impairing the validity of this Guaranty or the obligations of Guarantor hereunderGuarantied Obligations.
(e) No compromise, alteration, amendment, modification, extension, indulgence, renewal, release or other change of, or waiver, suspension, consent, compromise, delay, omission, failure to act act, forbearance or other action with respect to, any liability or obligation under or with respect to, or of any of the terms, covenants or conditions of, the Note, the Loan Agreement, the Mortgages or the other Loan Documents or any amendment, modification or other change of the Plans or any legal requirement shall in any way alter, impair or affect any of the obligations of Guarantor Guarantied Obligations or Lender's rights hereunder, and Guarantor agrees that if any Loan Documents Document or the Plans are modified with Lender's consent, the Guaranteed Guarantied Obligations shall automatically be deemed modified to include such modificationsmodifications without the necessity of notice to Guarantor except as may otherwise be required under the Loan Agreement.
(f) Lender may proceed to protect and enforce any or all of its rights under this Guaranty by suit in equity or action at law, whether for the specific performance of any covenants or agreements contained in this Guaranty or otherwise, or to take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by Guarantor. Each and every remedy of Lender shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity. No single exercise of Lender's power to bring any action or institute any proceeding shall be deemed to exhaust such power, but such power shall continue undiminished and may be exercised from time to time as often as Lender may elect until the earlier of the Guaranty Termination Date or the date that all the Guarantied Obligations have been satisfied. Lender shall be under no obligation to take any action and shall not be liable for any action taken or any failure to take action or any delay in taking action against Guarantor, Borrower or any other Person or otherwise with respect to the Guarantied Obligations.
(g) No waiver shall be deemed to have been made by Lender of any rights hereunder unless the same shall be in writing and signed by Lender, and any such waiver shall be a waiver only with respect to the specific matter involved and shall in no way impair the rights of Lender or the obligations of Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or proceeding commenced by Lender against Borrowers Borrower in connection with or based upon the Note, the Loan Agreement, the Mortgages or any other Loan Documents and recovery may be had against Guarantor in such action or proceeding or in any independent action or proceeding against Guarantor only to the extent of Guarantor's liability hereunder, without any requirement that Lender first assert, prosecute or exhaust any remedy or claim against Borrowers Borrower, or any other Person, or any security for the obligations of Borrowers Borrower, or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment is made by Borrowers Borrower, or Guarantor to Lender and such payment is rescinded or must otherwise be returned by Lender (as determined by Lender in its sole and absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, receivership, conservatorship, winding up or other similar proceeding involving or affecting any Borrower or Guarantor, all as though such payment had not been made.
(j) In For so long as the event that Guarantor shall advance or become obligated to pay any sums under this Guaranty or in connection with the Guaranteed Obligations or in the event that for any reason whatsoever any Borrower or any subsequent owner of any Property or any part thereof Loan is now, or shall hereafter become, indebted to Guarantoroutstanding, Guarantor agrees that (i) the amount of such sums and of such indebtedness hereby expressly waives any and all interest thereon shall at all times be subordinate as to the lienof its rights of subrogation, the time of payment reimbursement, indemnity and in all other respects to all sums, including principal and interest and other amounts, at any time owed to Lender under the Loan Documents, and (ii) recourse against Borrower and/or Owner. Guarantor shall not be entitled to enforce or receive payment thereof until all principal, interest and other sums due pursuant to deemed a "creditor" of the Loan Documents have been paid in full. Nothing herein contained is intended or shall be construed to give Guarantor any right of subrogation in or under the Loan Documents or any right to participate in any way therein, or in the right, title or interest of Lender in or to any collateral for the Loan, notwithstanding any payments made by Guarantor under this Guaranty, until the actual and irrevocable receipt by Lender of payment in full of all principal, interest and other sums due Borrower with respect to the Loan or otherwise payable under Guarantied Obligations as said term "creditor" is defined in the Loan DocumentsUnited States Bankruptcy Code, as amended. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when any such sums due and owing to Lender shall not have been fully paid, such amount shall be paid by Guarantor to Lender for credit and application against such sums due and owing to Lender. The foregoing Notwithstanding the foregoing, the Guarantor and its affiliates shall not prohibit Borrowers from using have the proceeds right to be reimbursed by Owner in accordance with the terms and conditions of the Loan Management Agreement and the Development Agreement for any permitted use their out-of-pocket costs or fees pursuant thereto unless at the time of such payment there exists an Event of Default under the Loan Agreement. Anything herein to the contrary, including, without limitationnotwithstanding, the making provisions of distributions this Section 6(j) do not create any obligation on the part of the Owner to Guarantorthe Lender.
(k) Guarantor's obligations hereunder Subject to Section 2(f) hereof, the Guarantied Obligations shall survive a foreclosure, delivery of a deed-in-lieu of foreclosure, the exercise of any power of sale foreclosure or similar proceeding involving any the Property or any part thereof and the exercise by Senior Lender of any of all of its remedies pursuant to the Senior Loan Documents. Notwithstanding the foregoing to the contrary, the obligations and liabilities of Guarantor under this Guaranty shall survive for a period of two (2) years following payment in full of the Obligations in accordance with the terms of the Loan Documents, provided, however, in the event that any Guaranteed Obligations or liabilities of the Guarantor under this Guaranty shall have arisen prior to the expiration of such period, then in any such event the foregoing survival period shall not apply and the obligations and liabilities of Guarantor hereunder shall survive.
Appears in 1 contract
Samples: Guaranty of Completion (Brookdale Living Communities Inc)
