Unconditional Obligation. The obligations of Oglethorpe hereunder are absolute and unconditional and will be paid or performed strictly in accordance with this Agreement, irrespective of, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result of: (a) any lack of validity or enforceability of, or any amendment or other modification of, extension of time for performance under or compliance under, or waiver with respect to, this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement; (b) any exchange, release or nonperfection of any security interest in property now or hereafter securing any obligation, whenever arising, under this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement; (c) any circumstances which might otherwise constitute a defense available to, or discharge of, Oglethorpe with respect to this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement; (d) whether or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omitted; (e) whether the maturity of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with; (f) any loss of possession of the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage or otherwise; (g) the bankruptcy or insolvency of Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occur; or (h) whether this Agreement, any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocable.
Appears in 1 contract
Samples: Berkshire Guaranty Agreement (Oglethorpe Power Corp)
Unconditional Obligation. The obligations of Oglethorpe hereunder Guarantor under this Guaranty are primary, absolute and unconditional unconditional, and will be paid or performed strictly remain in accordance with this Agreement, irrespective offull force and effect without regard to, and Oglethorpe waives will not be impaired or affected by, any defense to of the performance of its obligations hereunder as a result offollowing:
(a1) any lack of validity the genuineness, validity, regularity or enforceability of, or any amendment or other modification of, extension of time for performance under or compliance under, or waiver with respect to, this change in the Loan Agreement, any of the Operative DocumentsNote, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Security Instrument or any other instrumentLoan Document, document or agreementany change in or extension of the manner, place or terms of payment of, any portion of the Guaranteed Obligations;
(b2) the taking or failure to take any action to enforce the Loan Agreement, the Note, the Security Instrument or any other Loan Document, or the exercise or failure to exercise any remedy, power or privilege contained therein or available at law or otherwise, or the waiver by Lender of any provisions of the Loan Agreement, the Note, the Security Instrument or any other Loan Document;
(3) any exchangeimpairment, modification, change, release or nonperfection limitation in any manner of the liability of Borrower or its estate in bankruptcy, or of any security interest in property now remedy for the enforcement of Borrower’s liability, resulting from the operation of any present or hereafter securing any obligation, whenever arising, under this Agreement, any future provision of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents bankruptcy laws or any other instrumentstatute or regulation, document or agreementthe dissolution, bankruptcy, insolvency, or reorganization of Borrower;
(c4) any circumstances which might otherwise constitute a defense available tothe merger or consolidation of Borrower, or discharge of, Oglethorpe with respect to this Agreement, any sale or transfer by Borrower of the Operative Documents, any all or part of the AMBAC Surety Documents its assets or any of the other Surety Bond Documents or any other instrument, document or agreementproperty;
(d5) whether or not any claim Guarantor may have against any other obligor of the acts mentioned in Guaranteed Obligations, including any claim of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omittedcontribution;
(e6) whether the maturity of any Covered Obligations shall be acceleratedrelease, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part part, of any other guarantor (if more than one), Borrower or otherwise dealt with;
(f) any loss of possession other obligor of the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage or otherwise;
(g) the bankruptcy or insolvency of Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occurGuaranteed Obligations; or
(h) whether this Agreement, any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv7) any other circumstances whatsoever in making action or failing circumstance that (with or without notice to make or knowledge of Guarantor) might vary the risks of Guarantor under this Guaranty or otherwise constitute a legal or equitable discharge or defense; The obligations under this Guaranty will not be discharged except by the full payment under either Surety Bond. In furtherance and not in limitation performance of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableGuaranteed Obligations.
Appears in 1 contract
Unconditional Obligation. The obligations Program Lessee hereby acknowledges and agrees that its obligation to make Lease Payments due hereunder, and the rights of Oglethorpe hereunder are the Program Lessor in and to such Lease Payments, shall be absolute and unconditional and will shall not be paid or performed strictly in accordance with this Agreementaffected by any circumstance of any character, irrespective of, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result ofincluding:
(a) any lack of validity or enforceability ofset-off, or any amendment abatement, counterclaim, suspension, recoupment, reduction, defense or other modification ofright or claim that the Program Lessee may have against the Program Lessor, extension of time for performance under or compliance underthe Origination Trustee, or waiver with respect to, this AgreementIndenture Trustee, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Securityholder or any other instrument, document or agreementPerson for any reason whatsoever;
(b) any exchange, release the breach or nonperfection failure of any security interest in property now warranty or hereafter securing any obligationrepresentation made in, whenever arising, under this Agreement, or the failure to perform or comply with any of the Operative Documentsterms of, this Agreement by the Program Lessor, the Origination Trustee, the Indenture Trustee, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Securityholder or any other instrument, document or agreementPerson;
(c) any circumstances which might otherwise constitute a defense available toamendment or other change of, or discharge ofany assignment of rights under, Oglethorpe with this Agreement or any other Basic Document, or any waiver, action or inaction under or in respect to of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any exercise or non-exercise of any right or remedy under this Agreement, including the exercise of any foreclosure or other Surety Bond Documents remedy under the Indenture, this Agreement or the sale of any 99% 2001-A SUBI Certificates or any other instrument, document part thereof or agreementinterest therein;
(d) whether any insolvency, bankruptcy or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omittedsimilar law affecting creditors' rights generally;
(e) whether the maturity any claims as a result of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of other business dealings by the Operative DocumentsProgram Lessor, the Surety Bond Documents, Program Lessee or their respective Affiliates or the AMBAC Surety Documents Indenture Trustee or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withthe Origination Trustee;
(f) any loss of possession of defect in or any Lien on the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage title to any 99% 2001-A SUBI Certificates or otherwiseany part thereof;
(g) any change, waiver, extension, indulgence or other act or omission in respect of any obligation or liability of the bankruptcy Program Lessor or insolvency the Program Lessee;
(h) any alleged failure on the part of Oglethorpethe Program Lessor to perform or comply with any of the terms of any other Basic Document;
(i) any invalidity or unenforceability or disaffirmance of this Agreement or any provision hereof or any of the other Basic Documents;
(j) any assignment, novation, merger, consolidation, sale or transfer of assets, leasing or other similar transaction of or affecting the Facility Program Lessee or the Program Lessor, whether with or without the Owner Participantapproval of the Indenture Trustee, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occurexcept as expressly provided in this Agreement; or
(hk) any other circumstance or happening whatsoever, whether this Agreement, or not similar to any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein foregoing. Each Lease Payment made by the Program Lessee hereunder shall be rejected final and, absent manifest error, the Program Lessee shall not seek to have any right to recover all or limited any part of such payment from the Program Lessor for any reason whatsoever. Notwithstanding the foregoing, in the event any bankruptcy, insolvency or similar proceeding (nothing herein being Lessee under a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds 2001-A Lease continues to make Total Monthly Payments after this Agreement has expired with respect to their use of the Surety Bonds and related 2001-A Vehicle pursuant to Section 3.01, the proceeds thereofProgram Lessor shall credit such amounts against subsequent Lease Payments due. Neither Berkshire nor any of its AffiliatesThe Program Lessee hereby waives, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In additionextent permitted by applicable law, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right rights it may now have or that at any time hereafter may be conferred upon it, by statute or otherwise, to indemnification; (c) notice of acceptance of terminate, cancel, quit or surrender this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to except in accordance with the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableexpress terms hereof.
Appears in 1 contract
Unconditional Obligation. The obligations of Oglethorpe hereunder are absolute NRG under Sections 1 and unconditional and will be paid or performed strictly in accordance with this Agreement, irrespective of, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result of:
(a) any lack of validity or enforceability of, or any amendment or other modification of, extension of time for performance under or compliance under, or waiver with respect to, this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(b) any exchange, release or nonperfection of any security interest in property now or hereafter securing any obligation, whenever arising, under this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(c) any circumstances which might otherwise constitute a defense available to, or discharge of, Oglethorpe with respect to this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(d) whether or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein 2 hereof shall be done or omitted;
(e) whether the maturity of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(f) any loss of possession of the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage or otherwise;
(g) the bankruptcy or insolvency of Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occur; or
(h) whether this Agreement, any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableirrevocable under any and all circumstances and shall be performed by NRG regardless of any circumstance whatsoever which might otherwise constitute an excuse for nonperformance of the obligations of NRG under Sections 1 and 2. Without limiting the generality of the foregoing, NRG shall remain obligated to the extent provided hereunder, notwithstanding that, without any reservation of rights by or against NRG and without notice to or further assent by NRG, any demand for payment of any amount due pursuant to the Loan Agreement or any other Financing Document may be rescinded by the Secured Parties and any of the Loans or other extensions of credit thereunder continued and such amounts, or the liability of any other Person upon or for any part thereof, or any collateral security or guaranty therefor or right of offset with respect thereto may, form time to time, in whole or part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Secured Parties, and the Loan Agreement or any other Financing Document or any other document executed in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Secured Parties may deem advisable from time to time, and any collateral security or guaranty or right of offset at any time held by the Secured Parties for the payment of such amounts may be sold or exchanged, waived, surrendered or released. None of the Secured Parties shall have any obligation to protect, secure, perfect or inquire as to any Lien at any time held by any of them as security for any amount due under the Loan Agreement or any other Financing Document or any property subject to any such Lien and the failure of any of the Secured Parties to do any of the foregoing shall have no effect on the obligations of NRG hereunder and none of the Secured Parties shall have any liability for the performance or observance of any of the obligations or duties of the Borrower under the Loan Agreement or under any other Transaction Document and the Borrower's failure to perform any such obligations or duties shall not impair the obligations of NRG hereunder.
Appears in 1 contract
Samples: Equity Commitment Agreement (NRG Generating U S Inc)
Unconditional Obligation. The Subject to the first sentence of Section 2.1 above, the obligations of Oglethorpe hereunder are the Guarantor under this Guaranty shall be absolute and unconditional and will be paid or performed strictly shall remain in full force and effect until payment in full of the Bond in accordance with this Agreementthe Resolution and, irrespective ofuntil payment in full of the Bond, and Oglethorpe waives any defense shall not to the performance fullest extent permitted by law, be affected, modified or impaired upon the happening from time to time of its obligations hereunder as a result ofany event, including, without limitation, any of the following, whether or not with notice to or the consent of the Guarantor:
(a) any lack of validity or enforceability of, or any amendment or other modification of, extension of time for performance under or compliance under, or waiver with respect to, this Agreement, any the failure to give notice to the Guarantor of the Operative Documents, any occurrence of an event of default under the AMBAC Surety Documents terms and provisions of this Guaranty or any an Event of Default under the other Surety Bond Documents Resolution or any other instrument, document or agreementthe Lease;
(b) the assigning or mortgaging or the purported assigning or mortgaging of all or any exchange, release or nonperfection of any security interest in property now or hereafter securing any obligation, whenever arising, under this Agreement, any part of the Operative Documents, any interest of the AMBAC Surety Documents or any Issuer in the Project in accordance with Section 6.1 of the other Surety Bond Documents or any other instrument, document or agreementLease;
(c) any circumstances which might otherwise constitute a defense available tothe waiver of the payment, performance or discharge of, Oglethorpe with respect to this Agreement, observance by the Issuer of any of its obligations, covenants or agreements contained in the Operative Documents, Resolution or the Lease or by the Guarantor of any of its obligations, covenants or agreements contained in this Guaranty or the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreementLease;
(d) whether or not any the extension of the acts mentioned in time for payment of principal of or interest on the Bond or any part thereof owing or payable on such Bond or under this Guaranty or of the provisions time for performance of this Agreementany other obligation, any covenant or agreement under or arising out of the Operative DocumentsResolution, any of the AMBAC Surety Documents Lease, this Guaranty or any of the other Surety Bond Documents extension or any other instrument, document or agreement referred to herein or therein shall be done or omittedthe renewal thereof;
(e) the modification or amendment (whether the maturity material or otherwise) of any Covered Obligations shall be acceleratedobligation, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document covenant or agreement referred to herein set forth in the Resolution or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withthe Lease;
(f) the taking of or the omitting to take any loss of possession of the Facility by Oglethorpeactions referred to in, whether by reason of or required by, the foreclosure of Resolution, the Oglethorpe Mortgage Lease or otherwisethis Guaranty;
(g) any failure, omission, delay or lack on the bankruptcy part of the Issuer or insolvency of Oglethorpethe Bondholder to enforce, assert or exercise any right, power or remedy conferred on the Bondholder by this Guaranty or on the Issuer or the Bondholder by the Resolution, the Facility LessorLease or any other act or acts on the part of the Issuer other than one which constitutes non- performance or a default under the Resolution, or any other act or acts on the part of the Bondholder;
(h) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets of the Guarantor or the Issuer, the Owner Participantmarshalling of assets and liabilities, AMBAC or Berkshire or any receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, compromisecomposition with creditors or readjustment of, compositionor other similar proceedings affecting the Guarantor or the Issuer or any of the assets of either of them, liquidation or plan affecting Oglethorpeany allegation or contest of the validity of this Guaranty or the Lease in any proceeding;
(i) to the extent permitted by law, any event or action that would, in the Facility Lessorabsence of this clause, result in the Owner Participantrelease or discharge of the Guarantor from the performance or observance of any obligation, AMBAC covenant or Berkshire shall occuragreement contained in this Guaranty by operation of law;
(j) any right of set-off, counterclaim, reduction, or diminution which the Guarantor might have against the Issuer or the Bondholder other than payment under this Guaranty;
(k) payment or prepayment (whether by payment or refunding) of any portion of the Bond, except to the extent of such payment; or
(hl) whether this Agreement, any the failure of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred Guarantor fully to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor perform any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries obligations set forth in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableGuaranty.
Appears in 1 contract
Samples: Guaranty Agreement
Unconditional Obligation. The obligations Program Lessee hereby acknowledges and agrees that its obligation to make Lease Payments due hereunder, and the rights of Oglethorpe hereunder are the Program Lessor in and to such Lease Payments, shall be absolute and unconditional and will shall not be paid or performed strictly in accordance with this Agreementaffected by any circumstance of any character, irrespective of, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result ofincluding:
(a) any lack of validity or enforceability ofset-off, or any amendment abatement, counterclaim, suspension, recoupment, reduction, defense or other modification ofright or claim that the Program Lessee may have against the Program Lessor, extension of time for performance under or compliance underthe Vehicle Trustee, or waiver with respect to, this AgreementIndenture Trustee, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Securityholder or any other instrument, document or agreementPerson for any reason whatsoever;
(b) any exchange, release the breach or nonperfection failure of any security interest in property now warranty or hereafter securing any obligationrepresentation made in, whenever arising, under this Agreement, or the failure to perform or comply with any of the Operative Documentsterms of, this Agreement by the Program Lessor, the Vehicle Trustee, the Indenture Trustee, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Securityholder or any other instrument, document or agreementPerson;
(c) any circumstances which might otherwise constitute a defense available toamendment or other change of, or discharge ofany assignment of rights under, Oglethorpe with this Agreement or any other Basic Document, or any waiver, action or inaction under or in respect to of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any exercise or non-exercise of any right or remedy under this Agreement, including the exercise of any foreclosure or other Surety Bond Documents remedy under the Indenture, this Agreement or the sale of any 2000-A SUBI Certificates or any other instrument, document part thereof or agreementinterest therein;
(d) whether any insolvency, bankruptcy or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omittedsimilar law affecting creditors' rights generally;
(e) whether the maturity any claims as a result of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of other business dealings by the Operative DocumentsProgram Lessor, the Surety Bond Documents, Program Lessee or their respective Affiliates or the AMBAC Surety Documents Indenture Trustee or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withthe Vehicle Trustee;
(f) any loss of possession of defect in or any Lien on the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage title to any 2000-A SUBI Certificates or otherwiseany part thereof;
(g) any change, waiver, extension, indulgence or other act or omission in respect of any obligation or liability of the bankruptcy Program Lessor or insolvency the Program Lessee;
(h) any alleged failure on the part of Oglethorpethe Program Lessor to perform or comply with any of the terms of any other Basic Document;
(i) any invalidity or unenforceability or disaffirmance of this Agreement or any provision hereof or any of the other Basic Documents;
(j) any assignment, novation, merger, consolidation, sale or transfer of assets, leasing or other similar transaction of or affecting the Facility Program Lessee or the Program Lessor, whether with or without the Owner Participantapproval of the Indenture Trustee, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occurexcept as expressly provided in this Agreement; or
(hk) any other circumstance or happening whatsoever, whether this Agreement, or not similar to any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein foregoing. Each Lease Payment made by the Program Lessee hereunder shall be rejected final and, absent manifest error, the Program Lessee shall not seek to have any right to recover all or limited any part of such payment from the Program Lessor for any reason whatsoever. Notwithstanding the foregoing, in the event any bankruptcy, insolvency or similar proceeding (nothing herein being Lessee under a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds 2000-A Lease continues to make Monthly Payments after this Agreement has expired with respect to their use of the Surety Bonds and related 2000-A Vehicle pursuant to Section 3.01, the proceeds thereofProgram Lessor shall credit such amounts against subsequent Lease Payments due. Neither Berkshire nor any of its AffiliatesThe Program Lessee hereby waives, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In additionextent permitted by applicable law, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right rights it may now have or that at any time hereafter may be conferred upon it, by statute or otherwise, to indemnification; (c) notice of acceptance of terminate, cancel, quit or surrender this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to except in accordance with the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableexpress terms hereof.
Appears in 1 contract
Unconditional Obligation. The obligations Program Lessee hereby acknowledges and agrees that its obligation to make Lease Payments due hereunder, and the rights of Oglethorpe hereunder are the Program Lessor in and to such Lease Payments, shall be absolute and unconditional and will shall not be paid or performed strictly in accordance with this Agreementaffected by any circumstance of any character, irrespective of, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result ofincluding:
(a) any lack of validity or enforceability ofset-off, or any amendment abatement, counterclaim, suspension, recoupment, reduction, defense or other modification ofright or claim that the Program Lessee may have against the Program Lessor, extension of time for performance under or compliance underthe Origination Trustee, or waiver with respect to, this AgreementIndenture Trustee, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Securityholder or any other instrument, document or agreementPerson for any reason whatsoever;
(b) any exchange, release the breach or nonperfection failure of any security interest in property now warranty or hereafter securing any obligationrepresentation made in, whenever arising, under this Agreement, or the failure to perform or comply with any of the Operative Documentsterms of, this Agreement by the Program Lessor, the Origination Trustee, the Indenture Trustee, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Securityholder or any other instrument, document or agreementPerson;
(c) any circumstances which might otherwise constitute a defense available toamendment or other change of, or discharge ofany assignment of rights under, Oglethorpe with this Agreement or any other Basic Document, or any waiver, action or inaction under or in respect to of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any exercise or non-exercise of any right or remedy under this Agreement, including the exercise of any foreclosure or other Surety Bond Documents remedy under the Indenture, this Agreement or the sale of any 99% 1999-A SUBI Certificates or any other instrument, document part thereof or agreementinterest therein;
(d) whether any insolvency, bankruptcy or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omittedsimilar law affecting creditors' rights generally;
(e) whether the maturity any claims as a result of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of other business dealings by the Operative DocumentsProgram Lessor, the Surety Bond Documents, Program Lessee or their respective Affiliates or the AMBAC Surety Documents Indenture Trustee or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withthe Origination Trustee;
(f) any loss of possession of defect in or any Lien on the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage title to any 99% 1999-A SUBI Certificates or otherwiseany part thereof;
(g) any change, waiver, extension, indulgence or other act or omission in respect of any obligation or liability of the bankruptcy Program Lessor or insolvency the Program Lessee;
(h) any alleged failure on the part of Oglethorpethe Program Lessor to perform or comply with any of the terms of any other Basic Document;
(i) any invalidity or unenforceability or disaffirmance of this Agreement or any provision hereof or any of the other Basic Documents;
(j) any assignment, novation, merger, consolidation, sale or transfer of assets, leasing or other similar transaction of or affecting the Facility Program Lessee or the Program Lessor, whether with or without the Owner Participantapproval of the Indenture Trustee, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occurexcept as expressly provided in this Agreement; or
(hk) any other circumstance or happening whatsoever, whether this Agreement, or not similar to any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein foregoing. Each Lease Payment made by the Program Lessee hereunder shall be rejected final and, absent manifest error, the Program Lessee shall not seek to have any right to recover all or limited any part of such payment from the Program Lessor for any reason whatsoever. Notwithstanding the foregoing, in the event any bankruptcy, insolvency or similar proceeding (nothing herein being Lessee under a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds 1999-A Lease continues to make Monthly Payments after this Agreement has expired with respect to their use of the Surety Bonds and related 1999-A Vehicle pursuant to Section 3.01, the proceeds thereofProgram Lessor shall credit such amounts against subsequent Lease Payments due. Neither Berkshire nor any of its AffiliatesThe Program Lessee hereby waives, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In additionextent permitted by applicable law, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right rights it may now have or that at any time hereafter may be conferred upon it, by statute or otherwise, to indemnification; (c) notice of acceptance of terminate, cancel, quit or surrender this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to except in accordance with the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableexpress terms hereof.
Appears in 1 contract
Unconditional Obligation. The obligations Obligations of Oglethorpe hereunder are the Guarantor under this Agreement shall be absolute and unconditional and will be shall remain in full force and effect until all of the Obligations shall have been paid or performed strictly in accordance with their respective terms and this Agreement, irrespective ofand, and Oglethorpe waives until such payment or provision, shall not be affected or impaired upon the happening from time to time of any defense event, including, without limitation, any of the following, whether or not with notice to or the performance consent of its obligations hereunder as a result ofthe Guarantor:
(a) the rescission, waiver, modification, amendment, compromise, settlement, release or termination unless the same are entered into voluntarily between the Tribe and Lakes Nipmuc of any lack of validity or enforceability of, or any amendment or other modification of, extension of time for performance under or compliance under, or waiver with respect to, this Agreement, any all of the Operative Documentsobligations, any covenants or agreements of the AMBAC Surety Documents or any of Lakes Nipmuc under the other Surety Bond Documents or any other instrument, document or agreementDevelopment Agreement and/or the Management Agreement;
(b) any exchangethe failure to give notice to the Guarantor of the occurrence of an event of default under the terms and provisions of the Development Agreement and/or the Management Agreement, release or nonperfection of any security interest except as specifically provided in property now or hereafter securing any obligation, whenever arising, under this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(c) the extension of the time for the meeting of any circumstances which might otherwise constitute a defense available toobligation, covenant or agreement of Lakes Nipmuc contained in or arising out of the Development Agreement and/or the Management Agreement, or discharge of, Oglethorpe with respect to this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreementrenewal thereof;
(d) whether the taking or not the omission of any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement actions referred to herein or therein shall be done or omittedin the Development Agreement and/or the Management Agreement;
(e) whether any failure, omission, delay or lack on the maturity part of the Tribe, to enforce, assert or exercise any Covered Obligations shall be acceleratedright, power or remedy conferred on it in the Development Agreement and/or the Management Agreement, or any Covered Obligations shall be modified, supplemented other act or amended in any respect, or any right under any acts on the part of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withTribe;
(f) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets of, the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting Lakes Nipmuc, or any loss other guarantor or any of possession its assets, or any allegation or contest of the Facility by Oglethorpe, whether by reason validity of the foreclosure Development Agreement and/or the Management Agreement in any such proceeding;
(g) to the extent permitted by law, the substitution, release or discharge of Lakes Nipmuc or any guarantor from the performance or observance of any obligation, covenant or agreement contained in or arising out of the Oglethorpe Mortgage Development Agreement and/or the Management Agreement by operation of law, equitable principles or otherwise;
(gh) the bankruptcy default or insolvency failure of Oglethorpe, the Facility Lessor, Guarantor fully to perform any of its obligations set forth in the Owner Participant, AMBAC Development Agreement and/or the Management Agreement;
(i) the transfer or Berkshire assignment by the Tribe of all or any reorganizationpart of its right, arrangementtitle or interest in the Tribal Lands, compromise, composition, liquidation except as restricted by the Development Agreement and/or the Management Agreement;
(j) any allegation or plan affecting Oglethorpe, contest of the Facility Lessor, validity or enforceability of the Owner Participant, AMBAC Development Agreement and/or the Management Agreement or Berkshire shall occurany part thereof or of the validity of Lakes Nipmuc's legal existence;
(k) adequacy of any rights the Tribe may have against any collateral or other means of obtaining repayment of the obligations of Lakes Nipmuc under the Development Agreement and/or the Management Agreement; or
(h) whether this Agreement, any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (ivl) any other circumstances whatsoever act or omission which might in making any manner or failing to make payment under either Surety Bond. In furtherance and not in limitation any extent vary the risk of the foregoingGuarantor or otherwise operate as a release or discharge of the Guarantor, Berkshire all of which may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, done without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableGuarantor.
Appears in 1 contract
Unconditional Obligation. The obligations of Oglethorpe the Company, each Borrower and WQD hereunder are absolute and shall be unconditional and will absolute and, without limiting the generality of the foregoing, shall not be paid released, discharged or performed strictly in accordance with this Agreement, irrespective of, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result ofotherwise affected by:
(ai) any lack extension, renewal, settlement, compromise, waiver or release in respect of validity any Obligation of any Borrower or enforceability ofthe Collateral therefor under this Agreement or the other Financing Agreements;
(ii) any modification or amendment of or supplement to this Agreement or the other Financing Agreements;
(iii) any change in the corporate existence, structure or ownership of any Loan Party, or any amendment insolvency, bankruptcy, reorganization or other modification ofsimilar proceeding affecting any other Loan Party or its Collateral or its assets;
(iv) the existence of any claim, extension of set-off or other rights which a Borrower or WQD may have at any time for performance under or compliance under, or waiver with respect to, this Agreement, any of against the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Company or any other instrumentBorrower, document or agreement;
(b) any exchange, release or nonperfection of any security interest in property now or hereafter securing any obligation, whenever arising, under this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Agent or any other instrumentPerson, document whether in connection herewith or agreement;any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; -100- 106
(cv) any circumstances which might otherwise constitute a defense available tovalidity or unenforceability relating to or against the Company, any Borrower or WQD for any reason of any provision or all of this Agreement or the other Financing Agreements, or discharge of, Oglethorpe with respect any provision of applicable law or regulation purporting to this Agreementprohibit the payment by the Company, any Borrower or WQD of the Operative Documents, principal of or interest on any of the AMBAC Surety Documents or any of the other Surety Bond Documents loan or any other instrument, document amount payable by it under this Agreement or agreement;the other Financing Agreements; or
(dvi) whether any other act or not omission to act or delay of any of kind by the acts mentioned in Company, any of Borrower, WQD, the Agent or any other Person or any other circumstance whatsoever which might, but for the provisions of this Agreementparagraph, any constitute a legal or equitable discharge of the Operative DocumentsCompany's, any of the AMBAC Surety Documents such Borrower's or any of WQD's obligations under this Agreement or the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omitted;
(e) whether the maturity of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(f) any loss of possession of the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage or otherwise;
(g) the bankruptcy or insolvency of Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occur; or
(h) whether this Agreement, any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableFinancing Agreements.
Appears in 1 contract
Unconditional Obligation. The obligations Program Lessee hereby acknowledges and agrees that the obligation of Oglethorpe the Program Lessee to pay all Required Interest Payments and Additional Payments due hereunder are and any required Program Operating Lease Termination Value, and the rights of the Program Lessor in and to such Required Interest Payments and Additional Payments and Program Operating Lease Termination Value, shall be absolute and unconditional and will shall not be paid or performed strictly in accordance with this Agreementaffected by any circumstance of any character, irrespective ofincluding, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result of:without limitation,
(a) any lack set-off, abatement, counterclaim, suspension, recoupment, reduction, defense or other right or claim which the Program Lessee may have against the Program Lessor, the Indenture Trustee, in its individual capacity or as Indenture Trustee, any holder of validity a Senior Note, Subordinated Note or enforceability ofLease Trust Certificate, or any amendment or other modification of, extension of time Person for performance under or compliance under, or waiver with respect to, this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreementreason whatsoever;
(b) any exchange, release the breach or nonperfection failure of any security interest in property now warranty or hereafter securing any obligationrepresentation made in, whenever arising, under this Agreement, or the failure to perform or comply with any of the Operative Documentsterms of, this Program Operating Lease by the Program Lessor, the Indenture Trustee, any holder (other than the Program Lessee) of the AMBAC Surety Documents a Senior Note, Subordinated Note or any of the other Surety Bond Documents Lease Trust Certificate or any other instrument, document or agreementPerson;
(c) any circumstances which might otherwise constitute a defense available toamendment or other change of, or discharge ofany assignment of rights under, Oglethorpe with respect to this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Program Operating Lease or any other instrumentBasic Document, document or agreementany waiver, action or inaction under or in respect of this Program Operating Lease, or any exercise or non-exercise of any right or remedy under this Program Operating Lease, including, without limitation, the exercise of any foreclosure or other remedy under the Indenture, this Program Operating Lease or the sale of the Series 1996-1 Certificates, or any part thereof or any interest therein;
(d) whether any insolvency, bankruptcy or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omittedsimilar law affecting creditors' rights generally;
(e) whether the maturity any claims as a result of any Covered Obligations shall be acceleratedother business dealings by the Program Lessor, the Program Lessee or any Affiliate thereof, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withIndenture Trustee;
(f) any loss of possession of defect in or any Lien on the Facility by Oglethorpe, whether by reason of title to the foreclosure of the Oglethorpe Mortgage Series 1996-1 Certificates or otherwiseany part thereof;
(g) any change, waiver, extension, indulgence or other act or omission in respect of any obligation or liability of the bankruptcy Program Lessor or insolvency the Program Lessee;
(h) any alleged failure on the part of Oglethorpethe Program Lessor to perform or comply with any of the terms hereof or any other agreement;
(i) any invalidity or unenforceability or disaffirmance of this Program Operating Lease or any provision hereof or any of the other Basic Documents;
(j) any assignment, novation, merger, consolidation, sale or transfer of assets, leasing or other similar transaction of or affecting the Facility Program Lessee or Program Lessor, whether with or without the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, approval of the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occurIndenture Trustee except as expressly provided in this Program Operating Lease; or
(hk) any other circumstance or happening whatsoever whether this Agreement, or not similar to any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein foregoing. Each Required Interest Payment and Additional Payment made by the Program Lessee hereunder shall be rejected or limited in final and, absent manifest error, the Program Lessee shall not seek to have any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes right to recover all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts part of such payment from the Program Lessor or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety BondPerson for any reason whatsoever. In furtherance and not in limitation of the foregoingThe Program Lessee hereby waives, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In additionextent permitted by Applicable Law, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to rights which it may apply; (d) all other notices and demands of now have or which at any kind and description relating time hereafter may be conferred upon it, by statute or otherwise, to terminate, cancel, quit or surrender this Program Operating Lease except in accordance with the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableexpress terms hereof.
Appears in 1 contract
Unconditional Obligation. The obligations of Oglethorpe hereunder are the Guarantor under this Guaranty shall be absolute and unconditional and will be paid or performed strictly shall remain in full force and effect until Payment in Full of the Bonds in accordance with this Agreementthe Indenture and, irrespective ofuntil Payment in Full of the Bonds, and Oglethorpe waives any defense shall not to the performance fullest extent permitted by law, be affected, modified or impaired upon the happening from time to time of its obligations hereunder as a result ofany event, including, without limitation, any of the following, whether or not with notice to or the consent of the Guarantor:
(a) the compromise, settlement, release or termination of any lack of validity or enforceability of, or any amendment or other modification of, extension of time for performance under or compliance under, or waiver with respect to, this Agreement, any all of the Operative Documentsobligations, any covenants or agreements of the AMBAC Surety Documents Issuer under the Indenture, the Lease Agreement or any of the other Surety Bond Documents or any other instrument, document or agreementSecurity Deed;
(b) any exchange, release or nonperfection of any security interest in property now or hereafter securing any obligation, whenever arising, under this Agreement, any the failure to give notice to the Guarantor of the Operative Documentsoccurrence of an event of default under the terms and provisions of this Guaranty or an Event of Default under the Indenture, any of the AMBAC Surety Documents Lease Agreement or any of the other Surety Bond Documents or any other instrument, document or agreementSecurity Deed;
(c) the assigning or mortgaging or the purported assigning or mortgaging of all or any circumstances which might otherwise constitute a defense available to, or discharge of, Oglethorpe with respect to this Agreement, any part of the Operative Documents, any interest of the AMBAC Surety Documents or any of Issuer in the other Surety Bond Documents or any other instrument, document or agreementProject;
(d) whether the waiver of the payment, performance or not observance by the Issuer of any of its obligations, covenants or agreements contained in the acts mentioned in Indenture, the Lease Agreement or the Security Deed or by the Guarantor of any of its obligations, covenants or agreements contained in this Guaranty, the provisions of this Bond Purchase Agreement or the Lease Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omitted;
(e) whether the maturity extension of the time for payment of any Covered Obligations shall be accelerated, principal of or interest on any Bond or any Covered Obligations shall be modified, supplemented part thereof owing or amended in any respect, payable on such Bond or any right under any this Guaranty or of the Operative Documentstime for performance of any other obligation, covenant or agreement under or arising out of the Indenture, the Surety Bond DocumentsLease Agreement, the AMBAC Surety Documents Security Deed or any other instrument, document this Guaranty or agreement referred to herein the extension or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withthe renewal of either thereof;
(f) any loss of possession of the Facility by Oglethorpe, modification or amendment (whether by reason of the foreclosure of the Oglethorpe Mortgage material or otherwise) of any obligation, covenant or agreement set forth in the Indenture, the Lease Agreement or the Security Deed;
(g) the bankruptcy taking of or insolvency the omitting to take any of Oglethorpethe actions referred to in, or required by, the Facility LessorIndenture, the Owner ParticipantLease Agreement, AMBAC the Security Deed or Berkshire this Guaranty;
(h) any failure, omission, delay or lack on the part of the Issuer or the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee by this Guaranty or on the Issuer or the Trustee by the Indenture, the Lease Agreement or the Security Deed, or any other act or acts on the part of the Issuer, the Trustee or any of the owners at any time or from time to time of the Bonds;
(i) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets of the Guarantor or the Issuer, the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, compromisecomposition with creditors or readjustment of, compositionor other similar proceedings affecting the Guarantor or the Issuer or any of the assets of either of them, liquidation or plan affecting Oglethorpeany allegation or contest of the validity of this Guaranty, the Facility LessorLease Agreement or the Security Deed in any proceeding;
(j) to the extent permitted by law, any event or action that would, in the Owner Participantabsence of this clause, AMBAC result in the release or Berkshire shall occurdischarge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty by operation of law;
(k) any right of set-off, counterclaim, reduction, or diminution which the Guarantor might have against the Issuer or the Trustee other than payment under this Guaranty;
(l) failure of the Issuer to issue or failure of the Guarantor to request the Issuer to order authenticated and delivered by the Trustee, Bonds in the entire amount authorized pursuant to the terms of the Indenture;
(m) Payment or prepayment (whether by payment or refunding) of any portion of the Bonds, except to the extent of such payment; or
(hn) whether this Agreement, any the failure of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred Guarantor fully to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor perform any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries obligations set forth in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableGuaranty.
Appears in 1 contract
Unconditional Obligation. The obligations Program Lessee hereby acknowledges and agrees that the obligation of Oglethorpe hereunder are the Program Lessee to pay all Required Payments and Additional Payments and any Program Operating Lease Termination Value due hereunder, and the rights of the Program Lessor in and to such Required Payments and Additional Payments and Program Operating Lease Termination Value, shall be absolute and unconditional and will shall not be paid or performed strictly in accordance with this Agreementaffected by any circumstance of any character, irrespective ofincluding, and Oglethorpe waives any defense to the performance of its obligations hereunder as a result ofwithout limitation:
(a) any lack set-off, abatement, counterclaim, suspension, recoupment, reduction, defense or other right or claim which the Program Lessee may have against the Program Lessor, the Indenture Trustee, in its individual capacity or as Indenture Trustee, any holder of validity a Senior Note, Subordinated Note or enforceability ofLease Trust Certificate, or any amendment or other modification of, extension of time Person for performance under or compliance under, or waiver with respect to, this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreementreason whatsoever;
(b) any exchange, release the breach or nonperfection failure of any security interest in property now warranty or hereafter securing any obligationrepresentation made in, whenever arising, under this Agreement, or the failure to perform or comply with any of the Operative Documentsterms of, this Program Operating Lease by the Program Lessor, the Indenture Trustee, any holder (other than the Program Lessee) of the AMBAC Surety Documents a Senior Note, Subordinated Note or any of the other Surety Bond Documents Lease Trust Certificate or any other instrument, document or agreementPerson;
(c) any circumstances which might otherwise constitute a defense available toamendment or other change of, or discharge ofany assignment of rights under, Oglethorpe with respect to this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents Program Operating Lease or any other instrumentBasic Document, document or agreementany waiver, action or inaction under or in respect of this Program Operating Lease, or any exercise or non-exercise of any right or remedy under this Program Operating Lease, including, without limitation, the exercise of any foreclosure or other remedy under the Indenture, this Program Operating Lease or the sale of the Series 2000-1 Certificates, or any part thereof or any interest therein;
(d) whether any insolvency, bankruptcy or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omittedsimilar law affecting creditors' rights generally;
(e) whether the maturity any claims as a result of any Covered Obligations shall be acceleratedother business dealings by the Program Lessor, the Program Lessee or any Affiliate thereof, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt withIndenture Trustee;
(f) any loss of possession of defect in or any Lien on the Facility by Oglethorpe, whether by reason of title to the foreclosure of the Oglethorpe Mortgage Series 2000-1 Certificates or otherwiseany part thereof;
(g) any change, waiver, extension, indulgence or other act or omission in respect of any obligation or liability of the bankruptcy Program Lessor or insolvency the Program Lessee;
(h) any alleged failure on the part of Oglethorpethe Program Lessor to perform or comply with any of the terms hereof or any other agreement;
(i) any invalidity or unenforceability or disaffirmance of this Program Operating Lease or any provision hereof or any of the other Basic Documents;
(j) any assignment, novation, merger, consolidation, sale or transfer of assets, leasing or other similar transaction of or affecting the Facility Program Lessee or Program Lessor, whether with or without the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, approval of the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occurIndenture Trustee except as expressly provided in this Program Operating Lease; or
(hk) any other circumstance or happening whatsoever whether this Agreement, or not similar to any of the Surety Bond Documentsforegoing. Each Required Payment, Additional Payment and any Operative Document or other instrument, document or agreement referred to herein or therein payment of Program Operating Lease Termination Value made by the Program Lessee hereunder shall be rejected or limited in final and, absent manifest error, the Program Lessee shall not seek to have any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes right to recover all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts part of such payment from the Program Lessor or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety BondPerson for any reason whatsoever. In furtherance and not in limitation of the foregoingThe Program Lessee hereby waives, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In additionextent permitted by Applicable Law, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to rights which it may apply; (d) all other notices and demands of now have or which at any kind and description relating time hereafter may be conferred upon it, by statute or otherwise, to terminate, cancel, quit or surrender this Program Operating Lease except in accordance with the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableexpress terms hereof.
Appears in 1 contract
Samples: Program Operating Lease (Fcal LLC)
Unconditional Obligation. The Obligors' respective obligations of Oglethorpe hereunder are under this Section 3 shall be absolute and unconditional under any and will all circumstances and irrespective of the occurrence of any Default or Event of Default or any condition precedent whatsoever or any setoff, counterclaim or defense to payment which either such Obligor may have or have had against the LC Issuer, any Lender or any beneficiary of a Physician Letter of Credit. Each Obligor further agrees with the Agent, the LC Issuer and the Lenders that the Agent, the LC Issuer and the Lenders shall not be paid or performed strictly in accordance with this Agreement, irrespective ofresponsible for, and Oglethorpe waives any defense to the performance of its Borrowers' respective reimbursement obligations hereunder as a result of:
(a) any lack of validity or enforceability ofunder Section 3.4 shall not be affected by, or any amendment or among other modification of, extension of time for performance under or compliance under, or waiver with respect to, this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(b) any exchange, release or nonperfection of any security interest in property now or hereafter securing any obligation, whenever arising, under this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(c) any circumstances which might otherwise constitute a defense available to, or discharge of, Oglethorpe with respect to this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(d) whether or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omitted;
(e) whether the maturity of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Operative Documentsthings, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(f) any loss of possession of the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage or otherwise;
(g) the bankruptcy or insolvency of Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occur; or
(h) whether this Agreement, any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency validity or genuineness of documents or of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds)endorsements thereon, even if the same such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment , or any dispute between or among any Obligor, the beneficiary of any Physician Letter of Credit or any financing institution or other party to which any Physician Letter of Credit may be transferred or any claims or defenses whatsoever of any Obligor against the beneficiary of any Physician Letter of Credit or any such transferee. Neither the Agent, the LC Issuer nor the Lenders shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Physician Letter of Credit. Each Obligor agrees that any action taken or omitted by Berkshire against presentation the Agent, the LC Issuer or any Lender under or in connection with each Physician Letter of a Demand for Payment or Demand for Avoided Payment that does Credit and the related drafts and documents, if done in good faith and without gross negligence, shall be binding upon the Obligors and shall not comply with result in any liability on the terms part of the applicable Surety Bond; Agent, the LC Issuer or (iv) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information Lender to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableObligor.
Appears in 1 contract
Samples: Loan and Security Agreement (Opticare Health Systems Inc)
Unconditional Obligation. The obligations of Oglethorpe hereunder are absolute and unconditional and will This Lease Agreement may not be paid or performed strictly terminated by any Obligor except solely as expressly provided in accordance with Section 12(a). Notwithstanding anything to the contrary in this Lease Agreement, subject to the first sentence of this Section 8(b), the Obligors’ obligations to make all payments due under this Lease Agreement through and including the Final Spectrum Lease Payment Date (determined without giving effect to and notwithstanding any failure of the FCC to renew any License(s)) shall be unconditional, irrevocable and irrespective of, and Oglethorpe waives without limitation, (1) the validity, enforceability, discharge, disaffirmance, settlement, rejection or compromise (by any defense Person, including a trustee in bankruptcy) of such obligations or of this Lease Agreement, (2) the absence of any attempt to collect such amounts, (3) the performance waiver or consent by Lessors with respect to any provision of its obligations hereunder as a result of:
this Lease Agreement, (a4) any lack change of validity the time, manner or enforceability ofplace of payment, or of any amendment or other modification ofterm, extension of time for performance under or compliance under, or waiver with respect to, this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents lease payment or any other instrumentfee or amount required to be paid by the Obligors under this Lease Agreement, document or agreement;
(b5) any exchangelaw, release regulation or nonperfection order of any security interest in property now jurisdiction affecting any term of any obligations of the Obligors hereunder or hereafter securing rights of Lessors with respect thereto, (6) any obligationfull or partial revocation, whenever arisingcancellation, termination, reclamation, taking, suspension or non-renewal of the Licenses for any reason, including (x) any non-renewal pursuant to Section 7, (y) the failure to satisfy any build-out requirements and (z) any act or omission to act of any officer, employee, member, owner, or other representative of Lessors or any Affiliate of Lessors, where “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with such Person, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise (and “Controlled” has the meaning correlative thereto), (7) any default or breach by Lessors or the Obligors under this Lease Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or (8) any other instrument, document circumstances or agreement;
(c) any circumstances which occurrences that might otherwise constitute a defense available tolegal or equitable discharge or defense. The Obligors waive any and all rights to set-offs, withholding, reductions, recovery and counterclaims, presentments and all judicial demands for performance against Lessors. The Obligors’ obligations hereunder shall not be affected in any way in the event of any sublease or discharge of, Oglethorpe with respect to this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement;
(d) assignment whether or not any of the acts mentioned in any of the provisions of this Agreement, any of the Operative Documents, any of the AMBAC Surety Documents or any of the other Surety Bond Documents or any other instrument, document or agreement referred to herein or therein shall be done or omitted;
(e) whether the maturity of any Covered Obligations shall be accelerated, or any Covered Obligations shall be modified, supplemented or amended in any respect, or any right permitted under any of the Operative Documents, the Surety Bond Documents, the AMBAC Surety Documents or any other instrument, document or agreement referred to herein or therein shall be waived or any other guarantee for any Covered Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(f) any loss of possession of the Facility by Oglethorpe, whether by reason of the foreclosure of the Oglethorpe Mortgage or otherwise;
(g) the bankruptcy or insolvency of Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire or any reorganization, arrangement, compromise, composition, liquidation or plan affecting Oglethorpe, the Facility Lessor, the Owner Participant, AMBAC or Berkshire shall occur; or
(h) whether this Agreement, any of the Surety Bond Documents, any Operative Document or other instrument, document or agreement referred to herein or therein shall be rejected or limited in any bankruptcy, insolvency or similar proceeding (nothing herein being a concession that any obligation hereunder or thereunder is properly classifiable as an executory obligation). Oglethorpe assumes all risks of the acts or omissions of the Beneficiaries of the Surety Bonds with respect to their use of the Surety Bonds and the proceeds thereof. Neither Berkshire nor any of its Affiliates, nor any of their respective officers, directors, shareholders, employees, agents, attorneys and advisors, shall be liable or responsible for: (i) the use that may be made of the Surety Bonds or any acts or omissions of any of the Beneficiaries in connection therewith; (ii) the validity, sufficiency or genuineness of any Demand for Payment or Demand for Avoided Payment (each as defined in the Surety Bonds), even if the same should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by Berkshire against presentation of a Demand for Payment or Demand for Avoided Payment that does not comply with the terms of the applicable Surety Bond; or (ivthis Lease Agreement. This Section 8(b) any other circumstances whatsoever in making or failing to make payment under either Surety Bond. In furtherance and not in limitation of the foregoing, Berkshire may accept a Demand for Payment or Demand for Avoided Payment that appears on its face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. In addition, Oglethorpe hereby expressly waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the obligations hereunder (except as provided in Sections 2.01(b) and 2.03 hereof); (b) all of its right to indemnification; (c) notice of acceptance shall survive termination of this Agreement and notice of any liability to which it may apply; (d) all other notices and demands of any kind and description relating to the obligations hereunder now or hereafter provided for by any agreement, statute, law, rule or regulation; and (e) any and all defenses pertaining to the obligations hereunder except for the defense of discharge by indefeasible payment. Oglethorpe shall not be exonerated with respect to its liabilities hereunder by any act or thing except indefeasible payment of the obligations hereunder, it being the purpose and intent of this Agreement that the obligations hereunder constitute the direct and primary obligations of Oglethorpe and that the covenants, agreements and all obligations of Oglethorpe hereunder be absolute, unconditional and irrevocableLease Agreement.
Appears in 1 contract
Samples: Intra Company Spectrum Lease Agreement (SPRINT Corp)
