Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral. (b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 4 contracts
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.), Credit Agreement (Global Clean Energy Holdings, Inc.), Credit Agreement (Global Clean Energy Holdings, Inc.)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Financing Party against the Borrower and/or any Loan other Credit Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of the Borrower and/or any Loan other Credit Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations guaranteed hereby (including the Borrower, any Loan Partyother Credit Party and any other guarantor thereof from time to time) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Financing Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and otherwise, (iv) any requirement that any Secured Financing Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan a Credit Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralcollateral, and (v) the benefit of any statute of limitations affecting the Guarantors’ or any other Credit Party’s liability in respect of any of the payment Obligations, and each Guarantor agrees that any payment of any Obligation to the applicable Person and any other act that shall toll any statute of limitations applicable to the Obligations shall also operate to toll such statute of limitations applicable to such Guarantor’s liability under this Article.
(b) Each Guarantor agrees hereby further waives any right to which it may be entitled under Articles 2836, 2846, 2848 and acknowledges that 2849 of the Administrative Agent Federal Civil Code (Código Civil Federal) of México and each holder similar articles contained in the Civil Codes of any Guaranteed Obligations may demand payment ofthe States of México and the Federal District. Each Guarantor further expressly waives the benefits of order, enforce excusión and recover from each Guarantor or any división contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2839, 2840, 2841 and other Person obligated for any or all similar articles of such Guaranteed Obligations the Federal Civil Code of México and similar articles contained in any order the Civil Codes of the States of México and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basisFederal District.
Appears in 3 contracts
Samples: Bridge Credit Agreement (Axtel Sab De Cv), Credit Agreement (Axtel Sab De Cv), Credit Agreement (Axtel Sab De Cv)
Waiver by the Guarantors. (a) 8.4.1. Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
(b) 8.4.2. Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 3 contracts
Samples: Amendment No. 16 to Credit Agreement (Global Clean Energy Holdings, Inc.), Credit Agreement (Global Clean Energy Holdings, Inc.), Credit Agreement (Global Clean Energy Holdings, Inc.)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably waives presentment to, demand of payment from and unconditionally waivesprotest to the Other Loan Parties of any of the Guaranteed Obligations, and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Secured Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives any right to require that resort be had by any Agent or any other Secured Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of any Agent or any other Secured Party in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: law, and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Loan Party, any Agent, the other Secured Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) all notices any adjustment, indulgence, forbearance or compromise that may might be required granted or given by Applicable Law any Agent or otherwise any other Secured Party to preserve intact any rights Other Loan Party or any other Person liable on the Guaranteed Obligations; or the failure of any Agent or any other Secured Party to assert any claim or demand or to exercise any right or remedy against any Other Loan Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Loan Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Loan Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Loan Party, including or any demandchange, presentment, protest, proof restructuring or termination of notice of non-payment, notice the corporate structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all of the assets of any Other Loan Party, or any change in the shareholders, partners, or members of any Other Loan Party; or any default, failure on or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any Other Loan Party to perform and comply with any covenanthas valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Loan Party, termthe creation, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Loan Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrowers will be liable to perform the Guaranteed Obligations, or that the Secured Parties will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan Partyletter of credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Secured Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Loan Party to the enforcementAdministrative Agent, assertion any other Agent or exercise by any other Secured Party being held to constitute a preference under the Bankruptcy Code or any similar federal, foreign or state law, or for any reason any Agent or any other Secured Party being required to refund such payment or pay such amount to any Other Loan Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by operation of law, including by way of a discharge, limitation or tolling thereof under applicable Debtor Relief Laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Loan Party, privilege the Administrative Agent, any other Secured Party or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; or (ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of law or equity. All waivers herein contained shall be without prejudice to the right of the Administrative Agent at its option to proceed to take any action against any Collateral or against any Loan Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 3 contracts
Samples: Guaranty (Steinway Musical Instruments Holdings, Inc.), Guaranty (Steinway Musical Instruments Holdings, Inc.), Guaranty (Steinway Musical Instruments Holdings, Inc.)
Waiver by the Guarantors. (a) Each Guarantor of the Guarantors hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty Guarantee provided in this Article IX and notice of any liability to which this guaranty Guarantee may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party Beneficiary against any Loan Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Obligations Guaranteed Obligations hereby (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Party Beneficiary of any right, power, privilege or remedy conferred upon such Person under the Financing Loan Documents or otherwise and otherwise, (iv) any requirement that any Secured Party Beneficiary exhaust any right, power, privilege or remedy, or exhaust or apply any assets of the Borrower or any other Guarantor or mitigate any damages resulting from a default, under any Financing Loan Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Loan Document or otherwiseotherwise (including any requirement that any action be initiated and/or completed against the Borrower prior to any action being initiated against any Guarantor), and (v) any requirement that claims or protect, secure, perfect or ensure any Lien on any Collateralliabilities be divided among Guarantors.
(b) Each Guarantor agrees and of the Guarantors expressly acknowledges that the Administrative Agent Guarantee provided in this Article IX is governed by the laws of the State of New York and each holder expressly agrees that any rights and privileges that it might otherwise have under the laws of Mexico shall not be applicable to this Guarantee, including, but not limited to, any Guaranteed Obligations benefit of orden, excusión, división, quita, novación, espera and modificación which may demand payment ofbe available to it under articles 2813, enforce and recover from each Guarantor 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2827, 2836, 2840, 2842, 2845, 2846, 2847, 2848, 2849 or any other Person obligated applicable articles of the Federal Civil Code of Mexico and the corresponding articles under the Civil Code in effect for any or all the Federal District of such Guaranteed Obligations in any order Mexico and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or all other Person first or each Guarantor or other Persons pro rata or on any other basisstates of Mexico.
Appears in 2 contracts
Samples: Credit Agreement (Kansas City Southern), Credit Agreement (Kansas City Southern De Mexico, S.A. De C.V.)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Loan Documents or otherwise and (iv) any requirement that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Loan Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Loan Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 2 contracts
Samples: Credit Agreement (Global Clean Energy Holdings, Inc.), Credit Agreement (Global Clean Energy Holdings, Inc.)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable law, presentment to, demand of payment from and protest to the Other Credit Parties of any of the Guaranteed Obligations, and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that the Collateral Agent or any Holder protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives any right to require that resort be had by the Collateral Agent or any Holder to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of the Collateral Agent or any Holder in favor of any Holder or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Credit Party, the Collateral Agent, any Holder, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or given by the Collateral Agent or any Holder to any Other Credit Party or any other Person liable on the Guaranteed Obligations; or the failure of the Collateral Agent or any Holder to assert any claim or demand or to exercise any right or remedy against any Other Credit Party under the provisions of any Bridge Loan Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Bridge Loan Document or any other agreement, including with respect to any Other Credit Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Credit Party or any other Person at any time liable for the payment of all notices or part of the Guaranteed Obligations; or any dissolution of any Other Credit Party, or any change, restructuring or termination of the corporate structure or existence of any Other Credit Party, or any sale, lease or transfer of any or all of the assets of any Other Credit Party, or any change in the shareholders, partners, or members of any Other Credit Party; or any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that may be required the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Applicable Law Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise to preserve intact creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any rights of any Secured Other Credit Party against any Loan has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Credit Party, including any demandthe creation, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Credit Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower will be liable to perform the Guaranteed Obligations, or that the Holders will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan Partycollateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of the Collateral Agent, any Holder or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Credit Party to the enforcementCollateral Agent or any Holder being held to constitute a preference under Title 11 of the United States Code or any similar Federal, assertion foreign or exercise state Law, or for any reason the Collateral Agent or Holder being required to refund such payment or pay such amount to any Other Credit Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Credit Party, privilege the Collateral Agent, any Holder or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Collateral Agent at its option to proceed to take any action against any Collateral or against any Loan Credit Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 2 contracts
Samples: Guaranty (WorldSpace, Inc), Guaranty (WorldSpace, Inc)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Note Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Note Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Note Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to require the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Note Documents or otherwise and (iv) any requirement right to require that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Note Document, or proceed to take any action against any Collateral or against any Loan Note Party or any other Person under or in respect of any Financing Note Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 2 contracts
Samples: Note Purchase Agreement (Gauzy Ltd.), Note Purchase Agreement (Gauzy Ltd.)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably waives presentment to, demand of payment from and unconditionally waivesprotest to the Other Credit Parties of any of the Guaranteed Obligations, and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Secured Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives any right to require that resort be had by any Agent or any other Secured Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of the any Agent or any other Secured Party in favor of any Credit Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: law, and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Credit Party, any Agent, the other Secured Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or given by any Agent or any other Secured Party to any Other Credit Party or any other Person liable on the Guaranteed Obligations; or the failure of any Agent or any other Secured Party to assert any claim or demand or to exercise any right or remedy against any Other Credit Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Credit Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Credit Party or any other Person at any time liable for the payment of all notices or part of the Guaranteed Obligations; or any dissolution of any Other Credit Party, or any change, restructuring or termination of the corporate structure or existence of any Other Credit Party, or any sale, lease or transfer of any or all of the assets of any Other Credit Party, or any change in the shareholders, partners, or members of any Other Credit Party; or any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that may be required the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Applicable Law law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise to preserve intact creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any rights of any Secured Other Credit Party against any Loan has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Credit Party, including any demandthe creation, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (including or the execution, delivery and performance of any Loan Party) except any document or instrument representing part of the foregoing as Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Credit Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be expressly required hereunderto pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Company will be liable to perform the Guaranteed Obligations, or that the Secured Parties will look to any other party to perform the Guaranteed Obligations;
(iiivi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Letter of Credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the enforcement, assertion or exercise by any Secured Party failure of any rightAgent, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement that any other Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in respect contemplation of the benefits of, the validity, enforceability, collectibility or value of any Financing Document of the Collateral;
(xi) any payment by any Other Credit Party to the Administrative Agent, any other Agent or otherwiseany other Secured Party being held to constitute a preference under Title 11 of the United States Code or any similar Federal, foreign or state law, or protect, secure, perfect for any reason any Agent or ensure any Lien on other Secured Party being required to refund such payment or pay such amount to any Collateral.Other Credit Party or someone else;
(bxii) Each any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor agrees or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and acknowledges unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by operation of law, including by way of a discharge, limitation or tolling thereof under applicable Debtor Relief laws;
(xiv) the existence of any claim, set-off or other right which any Guarantor may have at any time against any Other Credit Party, the Administrative Agent, any other Secured Party or any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; or
(xv) any other circumstance that might in any manner or to any extent otherwise constitute a defense available to, vary the risk of, or operate as a discharge of, such Guarantor as a matter of law or equity. All waivers herein contained shall be without prejudice to the right of the Administrative Agent and each holder of at its option to proceed against any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor Credit Party or any other Person obligated for any Person, whether by separate action or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basisby joinder.
Appears in 2 contracts
Samples: Credit Agreement (Be Aerospace Inc), Credit Agreement (Be Aerospace Inc)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably waives presentment to, demand of payment from and unconditionally waivesprotest to the Other Credit Parties of any of the Guaranteed Obligations, and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Secured Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives any right to require that resort be had by any Agent or any other Secured Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of the any Agent or any other Secured Party in favor of any Credit Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: (i) notice of acceptance law, and agrees that such Guarantor’s obligations under this Agreement shall not be released, discharged, diminished, impaired, reduced or adversely affected by any of the guaranty provided following, and waives any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in this Article IX and notice connection with any of the following:
(a) any renewal, extension, modification, increase, decrease, alteration or rearrangement of all or any part of the Guaranteed Obligations or any instrument executed in connection therewith, or any contract or understanding with any Other Credit Party, any Agent, the other Secured Parties, or any of them, or any other Person, pertaining to the Guaranteed Obligations;
(b) any adjustment, indulgence, forbearance or compromise that might be granted or given by any Agent or any other Secured Party to any Other Credit Party or any other Person liable on the Guaranteed Obligations; or the failure of any liability Agent or any other Secured Party to which assert any claim or demand or to exercise any right or remedy against any Other Credit Party under the provisions of any Credit Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Credit Document or any other agreement, including with respect to any Other Credit Party under this guaranty may applyAgreement;
(c) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Credit Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Credit Party, or any change, restructuring or termination of the corporate structure or existence of any Other Credit Party, or any sale, lease or transfer of any or all of the assets of any Other Credit Party, or any change in the shareholders, partners, or members of any Other Credit Party; or any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iid) the invalidity, illegality or unenforceability of all notices or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that may be required the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Applicable Law law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise to preserve intact creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any rights of any Secured Other Credit Party against any Loan has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Credit Party, including any demandthe creation, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (including or the execution, delivery and performance of any Loan Party) except any document or instrument representing part of the foregoing as Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(e) any full or partial release of the liability of any Other Credit Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be expressly required hereunderto pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Company will be liable to perform the Guaranteed Obligations, or that the Secured Parties will look to any other party to perform the Guaranteed Obligations;
(iiif) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(g) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Letter of Credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(h) any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(i) the enforcement, assertion or exercise by any Secured Party failure of any rightAgent, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement that any other Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(j) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in respect contemplation of the benefits of, the validity, enforceability, collectability or value of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any of the Collateral.;
(bk) Each Guarantor agrees and acknowledges that any payment by any Other Credit Party to the Administrative Collateral Agent, any other Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated Secured Party being held to constitute a preference under Title 11 of the United States Code or any similar Federal, foreign or state law, or for any reason any Agent or all any other Secured Party being required to refund such payment or pay such amount to any Other Credit Party or someone else;
(l) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Guaranteed Obligations in cash;
(m) the fact that all or any order and of the Guaranteed Obligations cease to exist by operation of law, including by way of a discharge, limitation or tolling thereof under applicable Debtor Relief laws;
(n) the existence of any claim, set-off or other right which any Guarantor may have at any time against any Other Credit Party, the Collateral Agent, any other Secured Party or any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; or
(o) any other circumstance that might in any manner whatsoeveror to any extent otherwise constitute a defense available to, vary the risk of, or operate as a discharge of, such Guarantor as a matter of law or equity. All waivers herein contained shall be without prejudice to the right of the Collateral Agent at its option to proceed against any requirement that the Administrative Agent Credit Party or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basisPerson, whether by separate action or by joinder.
Appears in 1 contract
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable Law, presentment to, demand of payment from and protest to the Other Loan Parties of any of the Guaranteed Obligations, and also waives to the extent permitted by applicable Law, promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Finance Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives to the extent permitted by applicable Law, any right to require that resort be had by any Agent or any other Finance Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of any Agent or any other Finance Party in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives to the extent permitted by applicable Law, any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Loan Party, any Agent, the other Finance Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) all notices any adjustment, indulgence, forbearance or compromise that may might be required granted or given by Applicable Law any Agent or otherwise any other Finance Party to preserve intact any rights Other Loan Party or any other Person liable on the Guaranteed Obligations; or the failure of any Secured Agent or any other Finance Party to assert any claim or demand or to exercise any right or remedy against any Other Loan Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Loan Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Loan Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Loan Party, including or any demandchange, presentment, protest, proof restructuring or termination of notice of non-payment, notice the corporate structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all of the assets of any Other Loan Party, or any change in the shareholders, partners, or members of any Other Loan Party; or any default, failure on or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury Laws, any Other Loan Party to perform and comply with any covenanthas valid defenses, claims or offsets (whether at Law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Loan Party, termthe creation, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Loan Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower and the Canadian Borrower will be liable to perform the Guaranteed Obligations, or that the Finance Parties will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan PartyLetter of Credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Finance Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Loan Party to the enforcementAdministrative Agent, assertion any other Agent or exercise any other Finance Party being held to constitute a preference under Title 11 of the United States Code or any similar Federal, foreign or state Law, or for any reason any Agent or any other Finance Party being required to refund such payment or pay such amount to any Other Loan Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy Laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Loan Party, privilege the Administrative Agent, any other Finance Party or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Administrative Agent at its option to proceed to take any action against any Collateral or against any Loan Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Samples: Guaranty (Sbarro Express LLC)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable law, presentment to, demand of payment from and protest to the Other Credit Parties of any of the Guaranteed Obligations, and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that the Collateral Agent or any Holder protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives any right to require that resort be had by the Collateral Agent or any Holder to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of the Collateral Agent or any Holder in favor of any Holder or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Credit Party, the Collateral Agent, any Holder, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or given by the Collateral Agent or any Holder to any Other Credit Party or any other Person liable on the Guaranteed Obligations; or the failure of the Collateral Agent or any Holder to assert any claim or demand or to exercise any right or remedy against any Other Credit Party under the provisions of any Convertible Note Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Convertible Note Document or any other agreement, including with respect to any Other Credit Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Credit Party or any other Person at any time liable for the payment of all notices or part of the Guaranteed Obligations; or any dissolution of any Other Credit Party, or any change, restructuring or termination of the corporate structure or existence of any Other Credit Party, or any sale, lease or transfer of any or all of the assets of any Other Credit Party, or any change in the shareholders, partners, or members of any Other Credit Party; or any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that may be required the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Applicable Law Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise to preserve intact creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any rights of any Secured Other Credit Party against any Loan has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Credit Party, including any demandthe creation, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Credit Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower will be liable to perform the Guaranteed Obligations, or that the Holders will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan Partycollateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of the Collateral Agent, any Holder or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Credit Party to the enforcementCollateral Agent or any Holder being held to constitute a preference under Title 11 of the United States Code or any similar Federal, assertion foreign or exercise state Law, or for any reason the Collateral Agent or Holder being required to refund such payment or pay such amount to any Other Credit Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Credit Party, privilege the Collateral Agent, any Holder or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Collateral Agent at its option to proceed to take any action against any Collateral or against any Loan Credit Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Samples: Guaranty (WorldSpace, Inc)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each any Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor from any Guarantors or other Persons pro rata or on any other basis.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Tellurian Inc. /De/)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable Law, presentment to, demand of payment from and protest to the Other Loan Parties of any of the Guaranteed Obligations, and also waives to the extent permitted by applicable Law, promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Finance Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives to the extent permitted by applicable Law, any right to require that resort be had by any Agent or any other Finance Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of any Agent or any other Finance Party in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives to the extent permitted by applicable Law, any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Loan Party, any Agent, the other Finance Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) all notices any adjustment, indulgence, forbearance or compromise that may might be required granted or given by Applicable Law any Agent or otherwise any other Finance Party to preserve intact any rights Other Loan Party or any other Person liable on the Guaranteed Obligations; or the failure of any Secured Agent or any other Finance Party to assert any claim or demand or to exercise any right or remedy against any Other Loan Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Loan Party under this Agreement;
(iii) the insolvency, examinership, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Loan Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Loan Party, including or any demandchange, presentment, protest, proof restructuring or termination of notice of non-payment, notice the corporate structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all of the assets of any Other Loan Party, or any change in the shareholders, partners, or members of any Other Loan Party; or any default, failure on or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Table of Contents Obligations, or any part thereof, exceed the amount permitted by Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury Laws, any Other Loan Party to perform and comply with any covenanthas valid defenses, claims or offsets (whether at Law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Loan Party, termthe creation, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Loan Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrowers will be liable to perform the Guaranteed Obligations, or that the Finance Parties will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan Partyletter of credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Finance Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Loan Party to the enforcementAdministrative Agent, assertion any other Agent or exercise any other Finance Party being held to constitute a preference under Title 11 of the United States Code or any similar federal, foreign or state Law, or for any reason any Agent or any other Finance Party being required to refund such payment or pay such amount to any Other Loan Party or someone else; Table of Contents
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy Laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Loan Party, privilege the Administrative Agent, any other Finance Party or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Administrative Agent at its option to proceed to take any action against any Collateral or against any Loan Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable Law, presentment to, demand of payment from and protest to the Other Loan Parties of any of the Guaranteed Obligations, and also waives to the extent permitted by applicable Law, promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Credit Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives to the extent permitted by applicable Law, any right to require that resort be had by any Agent or any other Credit Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of any Agent or any other Credit Party in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives to the extent permitted by applicable Law, any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Loan Party, any Agent, the other Credit Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) all notices any adjustment, indulgence, forbearance or compromise that may might be required granted or given by Applicable Law any Agent or otherwise any other Credit Party to preserve intact any rights Other Loan Party or any other Person liable on the Guaranteed Obligations; or the failure of any Secured Agent or any other Credit Party to assert any claim or demand or to exercise any right or remedy against any Other Loan Party under the provisions of any Loan Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any Other Loan Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Loan Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Loan Party, including or any demandchange, presentment, protest, proof restructuring or termination of notice of non-payment, notice the corporate structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all of the assets of any Other Loan Party, or any change in the shareholders, partners, or members of any Other Loan Party; or any default, failure on or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury Laws, any Other Loan Party to perform and comply with any covenanthas valid defenses, claims or offsets (whether at Law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Loan Party, termthe creation, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Loan Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower will be liable to perform the Guaranteed Obligations, or that the Credit Parties will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan Partycollateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Credit Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Loan Party to the enforcementAdministrative Agent, assertion any other Agent or exercise any other Credit Party being held to constitute a preference under Title 11 of the United States Code or any similar Federal, foreign or state Law, or for any reason any Agent or any other Credit Party being required to refund such payment or pay such amount to any Other Loan Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, subject to the terms of the Intercreditor Agreement, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy Laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Loan Party, privilege the Administrative Agent, any other Credit Party or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Administrative Agent at its option to proceed to take any action against any Collateral or against any Loan Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Samples: Guaranty (Sbarro Inc)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable law, presentment to, demand of payment from and protest to the Other Loan Parties of any of the Guaranteed Obligations, and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Finance Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives any right to require that resort be had by any Agent or any other Finance Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of the any Agent or any other Finance Party in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Loan Party, any Agent, the other Finance Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) all notices any adjustment, indulgence, forbearance or compromise that may might be required granted or given by Applicable Law any Agent or otherwise any other Finance Party to preserve intact any rights Other Loan Party or any other Person liable on the Guaranteed Obligations; or the failure of any Secured Agent or any other Finance Party to assert any claim or demand or to exercise any right or remedy against any Other Loan Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Loan Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Loan Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Loan Party, including or any demandchange, presentment, protest, proof restructuring or termination of notice of non-payment, notice the corporate structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all of the assets of any Other Loan Party, or any change in the shareholders, partners, or members of any Other Loan Party; or any default, failure on or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any Other Loan Party to perform and comply with any covenanthas valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Loan Party, termthe creation, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Loan Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower will be liable to perform the Guaranteed Obligations, or that the Finance Parties will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan PartyLetter of Credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Finance Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Loan Party to the enforcementAdministrative Agent, assertion any other Agent or exercise any other Finance Party being held to constitute a preference under Title 11 of the United States Code or any similar Federal, foreign or state Law, or for any reason any Agent or any other Finance Party being required to refund such payment or pay such amount to any Other Loan Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable Debtor Relief Laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Loan Party, privilege the Administrative Agent, any other Finance Party or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Administrative Agent at its option to proceed to take any action against any Collateral or against any Loan Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Samples: Guaranty (Verifone Systems, Inc.)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Financing Party against the Borrower and/or any Loan other Credit Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of the Borrower and/or any Loan other Credit Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations guaranteed hereby (including the Borrower, any Loan Partyother Credit Party and any other guarantor thereof from time to time) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Financing Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and otherwise, (iv) any requirement that any Secured Financing Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan a Credit Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
collateral, and (v) the benefit of any statute of limitations affecting the Guarantors’ or any other Credit Party’s liability in respect of any of the payment Obligations, and each Guarantor agrees that any payment of any Obligation to the applicable Person and any other act that shall toll any statute of limitations applicable to the Obligations shall also operate to toll such statute of limitations applicable to such Guarantor’s liability under this Article. (b) Each Guarantor agrees hereby further waives any right to which it may be entitled under Articles 2836, 2846, 2848 and acknowledges that 2849 of the Administrative Agent Federal Civil Code (Código Civil Federal) of México and each holder similar articles contained in the Civil Codes of any Guaranteed Obligations may demand payment ofthe States of México and the Federal District. Each Guarantor further expressly waives the benefits of order, enforce excusión and recover from each Guarantor or any división contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2839, 2840, 2841 and other Person obligated for any or all similar articles of such Guaranteed Obligations the Federal Civil Code of México and similar articles contained in any order the Civil Codes of the States of México and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basisFederal District.
Appears in 1 contract
Samples: Credit Agreement (Axtel Sab De Cv)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable law, presentment to, demand of payment from and protest to the Other Credit Parties of any of the Guaranteed Obligations, and also waives promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that the Collateral Agent or any Holder protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives any right to require that resort be had by the Collateral Agent or any Holder to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of the Collateral Agent or any Holder in favor of any Holder or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Credit Party, the Collateral Agent, any Holder, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or given by the Collateral Agent or any Holder to any Other Credit Party or any other Person liable on the Guaranteed Obligations; or the failure of the Collateral Agent or any Holder to assert any claim or demand or to exercise any right or remedy against any Other Credit Party under the provisions of any Amended and Restated Convertible Note Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Amended and Restated Convertible Note Document or any other agreement, including with respect to any Other Credit Party under this Agreement;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Credit Party or any other Person at any time liable for the payment of all notices or part of the Guaranteed Obligations; or any dissolution of any Other Credit Party, or any change, restructuring or termination of the corporate structure or existence of any Other Credit Party, or any sale, lease or transfer of any or all of the assets of any Other Credit Party, or any change in the shareholders, partners, or members of any Other Credit Party; or any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that may be required the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Applicable Law Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise to preserve intact creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any rights of any Secured Other Credit Party against any Loan has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Credit Party, including any demandthe creation, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Credit Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower will be liable to perform the Guaranteed Obligations, or that the Holders will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan Partycollateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of the Collateral Agent, any Holder or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Credit Party to the enforcementCollateral Agent or any Holder being held to constitute a preference under Title 11 of the United States Code or any similar Federal, assertion foreign or exercise state Law, or for any reason the Collateral Agent or Holder being required to refund such payment or pay such amount to any Other Credit Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Credit Party, privilege the Collateral Agent, any Holder or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Collateral Agent at its option to proceed to take any action against any Collateral or against any Loan Credit Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Samples: Guaranty (WorldSpace, Inc)
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable Law, presentment to, demand of payment from and protest to the Other Loan Parties of any of the Guaranteed Obligations, and also waives to the extent permitted by applicable Law, promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Finance Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives to the extent permitted by applicable Law, any right to require that resort be had by any Agent or any other Finance Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of any Agent or any other Finance Party in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives to the extent permitted by applicable Law, any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Loan Party, any Agent, the other Finance Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) all notices any adjustment, indulgence, forbearance or compromise that may might be required granted or given by Applicable Law any Agent or otherwise any other Finance Party to preserve intact any rights Other Loan Party or any other Person liable on the Guaranteed Obligations; or the failure of any Secured Agent or any other Finance Party to assert any claim or demand or to exercise any right or remedy against any Other Loan Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Loan Party under this Agreement;
(iii) the insolvency, examinership, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Loan Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Loan Party, including or any demandchange, presentment, protest, proof restructuring or termination of notice of non-payment, notice the corporate structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all of the assets of any Other Loan Party, or any change in the shareholders, partners, or members of any Other Loan Party; or any default, failure on or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Law, the act of creating the Guaranteed Obligations or any part thereof is ultra vxxxx, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury Laws, any Other Loan Party to perform and comply with any covenanthas valid defenses, claims or offsets (whether at Law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Loan Party, termthe creation, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Loan Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower will be liable to perform the Guaranteed Obligations, or that the Finance Parties will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan PartyLetter of Credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Finance Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Loan Party to the enforcementAdministrative Agent, assertion any other Agent or exercise any other Finance Party being held to constitute a preference under Title 11 of the United States Code or any similar federal, foreign or state Law, or for any reason any Agent or any other Finance Party being required to refund such payment or pay such amount to any Other Loan Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy Laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Loan Party, privilege the Administrative Agent, any other Finance Party or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Administrative Agent at its option to proceed to take any action against any Collateral or against any Loan Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Party, including any demand, presentment, protest, proof of notice of non-non- payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, any Default or Event of Default under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each any Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor from any Guarantors or other Persons pro rata or on any other basis.
Appears in 1 contract
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a default, any Default or Event of Default under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each any Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor from any Guarantors or other Persons pro rata or on any other basis.
Appears in 1 contract
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, only to the extent permitted by applicable Law, presentment to, demand of payment from and protest to the Other Loan Parties of any of the Guaranteed Obligations, and also waives to the extent permitted by applicable Law, promptness, diligence, notice of acceptance of its guarantee, any other notice with respect to any of the Guaranteed Obligations and this Agreement and any requirement that any Agent or any other Finance Party protect, secure, perfect or insure any Lien or any property subject thereto. Each Guarantor further waives to the extent permitted by applicable Law, any right to require that resort be had by any Agent or any other Finance Party to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of any Agent or any other Finance Party in favor of any Loan Party or any other Person. Each Guarantor hereby consents and agrees to each of the following to the fullest extent permitted by Applicable Law: , and agrees that such Guarantor’s obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives to the extent permitted by applicable Law, any rights (including rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:
(i) notice any renewal, extension, modification, increase, decrease, alteration or rearrangement of acceptance all or any part of the guaranty provided Guaranteed Obligations or any instrument executed in this Article IX and notice connection therewith, or any contract or understanding with any Other Loan Party, any Agent, the other Finance Parties, or any of them, or any liability other Person, pertaining to which this guaranty may apply, the Guaranteed Obligations;
(ii) all notices any adjustment, indulgence, forbearance or compromise that may might be required granted or given by Applicable Law any Agent or otherwise any other Finance Party to preserve intact any rights Other Loan Party or any other Person liable on the Guaranteed Obligations; or the failure of any Secured Agent or any other Finance Party to assert any claim or demand or to exercise any right or remedy against any Other Loan Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Loan Party under this Agreement;
(iii) the insolvency, examinership, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Loan Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Loan Party, including or any demandchange, presentment, protest, proof restructuring or termination of notice of non-payment, notice the corporate structure or existence of any Other Loan Party, or any sale, lease or transfer of any or all of the assets of any Other Loan Party, or any change in the shareholders, partners, or members of any Other Loan Party; or any default, failure on or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Obligations, or any part thereof, exceed the amount permitted by Law, the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury Laws, any Other Loan Party to perform and comply with any covenanthas valid defenses, claims or offsets (whether at Law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Loan Party, termthe creation, condition performance or provision of any agreement and any other notice to any other party that may be liable in respect repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
(v) any full or partial release of the liability of any Other Loan Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Borrower will be liable to perform the Guaranteed Obligations, or that the Finance Parties will look to any other party to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Loan Partyletter of credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) except any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
(ix) the failure of any Agent, any other Finance Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(x) the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the foregoing as may be expressly required hereunder, Collateral;
(iiixi) any right payment by any Other Loan Party to the enforcementAdministrative Agent, assertion any other Agent or exercise any other Finance Party being held to constitute a preference under Title 11 of the United States Code or any similar federal, foreign or state Law, or for any reason any Agent or any other Finance Party being required to refund such payment or pay such amount to any Other Loan Party or someone else;
(xii) any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full payment and satisfaction of the Guaranteed Obligations in cash;
(xiii) the fact that all or any of the Guaranteed Obligations cease to exist by any Secured Party operation of Law, including by way of a discharge, limitation or tolling thereof under applicable bankruptcy Laws;
(xiv) the existence of any rightclaim, powerset-off or other right which any Guarantor may have at any time against any Other Loan Party, privilege the Administrative Agent, any other Finance Party or remedy conferred upon any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such Person under the Financing Documents claim by separate suit or otherwise and compulsory counterclaim; and
(ivxv) any requirement other circumstance that might in any Secured Party exhaust manner or to any rightextent otherwise constitute a defense available to, power, privilege or remedyvary the risk of, or mitigate any damages resulting from operate as a defaultdischarge of, under any Financing Document, such Guarantor as a matter of Law or equity (it being understood that a Guarantor may assert the defense of final payment in full of the Guaranteed Obligations). All waivers herein contained shall be without prejudice to the right of the Administrative Agent at its option to proceed to take any action against any Collateral or against any Loan Party or any other Person under Person, whether by separate action or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateralby joinder.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Waiver by the Guarantors. (a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of acceptance of the guaranty provided in this Article IX and notice of any liability to which this guaranty may apply, (ii) all notices that may be required by Applicable Law or otherwise to preserve intact any rights of any Secured Party against any Loan Party, including any demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of any agreement and any other notice to any other party that may be liable in respect of the Guaranteed Obligations (including any Loan Party) except any of the foregoing as may be expressly required hereunder, (iii) any right to require the enforcement, assertion or exercise by any Secured Party of any right, power, privilege or remedy conferred upon such Person under the Financing Documents or otherwise and (iv) any requirement right to require that any Secured Party exhaust any right, power, privilege or remedy, or mitigate any damages resulting from a defaultany Default or Event of Default, under any Financing Document, or proceed to take any action against any Collateral or against any Loan Party or any other Person under or in respect of any Financing Document or otherwise, or protect, secure, perfect or ensure any Lien on any Collateral.
(b) Each Guarantor agrees and acknowledges that the Administrative Agent and each holder of any Guaranteed Obligations may demand payment of, enforce and recover from each any Guarantor or any other Person obligated for any or all of such Guaranteed Obligations in any order and in any manner whatsoever, without any requirement that the Administrative Agent or such holder seek to recover from any particular Guarantor or other Person first or each from any Guarantor or other Persons pro rata or on any other basis.
Appears in 1 contract
Samples: Credit Agreement (Gevo, Inc.)
