Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including: (a) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement; (b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person; (c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document; (d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both; (e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever; (f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents; (h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor; (i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor); (j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement); (k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and (l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts).
Appears in 6 contracts
Samples: Equity Contribution Agreement (Bloom Energy Corp), Equity Contribution Agreement, Equity Contribution Agreement (Bloom Energy Corp)
Waiver of Defenses. The Contributor To the extent permitted by applicable Legal Requirements, the Sponsor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, relinquishes all rights or and remedies accorded by applicable Governmental Rules Legal Requirements to sureties or guarantors and agrees not to assert or take advantage of any such right rights or remedies, including:
including (ai) any right to require the Collateral Agent or any Secured Party to proceed against the Company Borrower or any other Person person or to proceed against or exhaust any security held by the Collateral Agent or any other Secured Party at any time or to pursue any other remedy in the Collateral Agent’s or any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
Sponsor, (bii) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor Borrower or any other Person person or the failure of the Collateral Agent or any other Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor Borrower or any other Person;
person, (ciii) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in required pursuant to the Note Purchase express provisions of this Agreement), including notice of the existence, creation or incurring of any new or additional indebtedness Indebtedness or obligation or of any action or non-action on the part of the CompanyBorrower, Pledgor or any the Collateral Agent, the Secured PartyParties, any endorser or creditor of the foregoing or on the part of any other Person person under this or any Credit Document;
other instrument in connection with any obligation or evidence of Indebtedness held by the Collateral Agent or any Secured Party as collateral or in connection with any of the Obligations, (div) any defense based upon an election of remedies by the Collateral Agent or the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the ContributorSponsor, the right of the Contributor Sponsor to proceed against the Company, Pledgor Borrower or another Person person for reimbursement, or both;
, (ev) any defense based on any offset against any amounts which may be owed by any Person person to the Contributor, Sponsor or the Company or Pledgor or Borrower for any reason whatsoever;
, (fvi) any defense based on any act, failure to act, delay or omission whatsoever on the part of the Borrower or the failure by the Borrower to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by the Borrower under the Construction Contract, the TrAILCo Credit Agreement or any other Transaction Document, (vii) any defense based upon any Governmental Rule statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
, (g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(hviii) any defense, setoff or counterclaim which may at any time be available to or asserted by the CompanyBorrower against the Collateral Agent, Pledgor or the Contributor against any Secured Party Parties or any other Person person under the Construction Contract, the TrAILCo Credit Documents based on Agreement or related to the bankruptcy or insolvency of the Company or Pledgor;
other Transaction Document, (iix) any duty on the part of the Collateral Agent or any Secured Party to disclose to the Contributor Sponsor any facts such the Collateral Agent or any Secured Party may now or hereafter know about the Company or PledgorBorrower, regardless of whether such the Collateral Agent or any Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor Sponsor intends to assume, or have reason to believe that such facts are unknown to the ContributorSponsor, or have a reasonable opportunity to communicate such facts to the Contributor (Sponsor, since the Contributor acknowledging Sponsor acknowledges that it the Sponsor is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
Borrower, (jx) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Construction Contract, the TrAILCo Credit Documents Agreement or any other Transaction Document or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Construction Contract, the TrAILCo Credit Documents Agreement or any other Transaction Document, (other than this Agreement);
xi) any defense arising because of the Collateral Agent’s or any Secured Party’s election, in any proceeding instituted under the U.S. Bankruptcy Code, of the application of Section 1111(b)(2) of the U.S. Bankruptcy Code, (kxii) any defense based upon any borrowing or grant of a security interest under Section 364 of the U.S. Bankruptcy Code of the United States; and
and (lxiii) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by the Collateral Agent or any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (in each of the foregoing cases other than setoff against the Contributor orthan, subject to Section 4.43.01, the defense of payment of the applicable amounts).
Appears in 3 contracts
Samples: Equity Commitment Agreement, Equity Commitment Agreement (Allegheny Energy, Inc), Equity Commitment Agreement (Allegheny Energy, Inc)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishesExcept for payment or performance in full of the Guaranteed Obligations, the payment in full by the Guarantor of its obligations under this Guarantee or otherwise as provided in this Guarantee, the Guarantor's obligations under this Guarantee shall not be discharged, impaired or otherwise adversely affected by any act, omission, circumstance, matter or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Guarantee or which might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor, including (whether or not known to the maximum extent permitted by applicable Governmental Rules, all rights Guarantor or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:the Borrower):
(a) any right time, waiver, composition, forbearance or concession given to require any Secured Party to proceed against the Company Borrower or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreementperson;
(b) any defense that may arise by reason of the incapacityassertion of, lack of or failure to assert, or delay in asserting, any right, power or authority, death, dissolution, merger, termination or disability of remedy against the Company, Pledgor Borrower or any other Person person, or the failure in respect of any Secured Party to file or enforce a claim against security for the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonLoans;
(c) demandany amplification, presentmentamendment (however fundamental), protest and notice variation or replacement of the provisions of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation Financing Document or of any action other agreement or non-action on security between the part of Bank and the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit DocumentBorrower;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights failure of the ContributorBorrower or the Guarantor to comply with any requirement of any law, the right of the Contributor to proceed against the Company, Pledgor regulation or another Person for reimbursement, or bothorder;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributordissolution, liquidation, reorganization or other alteration of the Company legal status or Pledgor structure of the Borrower or for any reason whatsoeverthe Guarantor;
(f) any defense based upon purported or actual assignment, transfer, novation or disposal of, or granting any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that participation in, any of the principalLoans to any other party;
(g) any defense based on any failure to actFinancing Document being in whole or in part illegal, delay void, voidable, avoided, invalid, unenforceable or omission whatsoever on the part otherwise of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;limited force and effect; or
(h) any defensetotal or partial failure to realize the value of, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on release, discharge, exchange or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge substitution of, any guarantor or surety (other than setoff against security held by the Contributor or, subject to Section 4.4, the defense of payment Bank in respect of the applicable amounts)Guaranteed Obligations or any of them.
Appears in 3 contracts
Samples: Irrevocable Undertaking (Consolidated Water Co LTD), Guarantee (Consolidated Water Co LTD), Guarantee (Consolidated Water Co LTD)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Borrowers hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Borrowers or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Borrower hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Borrowers pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Borrower, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Borrowers or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosureAgent or any Lender, which destroys or otherwise impairs the subrogation rights of a Borrower or the Contributor, the right rights of the Contributor a Borrower to proceed against the Company, Pledgor or another Person other Borrowers for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsBorrowers;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Borrowers any facts such Secured Party Agent or any Lender may now or hereafter know about Borrowers or the Company or PledgorEligible Real Estate Assets, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Borrower intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Borrowers or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Borrowers, it being understood and agreed that it each Borrower is fully responsible for being and keeping informed of the financial condition of the Company other Borrowers, of the condition of the Eligible Real Estate Asset and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by Borrowers hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation or other provision contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Borrower or any other circumstance Person of any Eligible Real Estate Assets, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any lack of commercial reasonableness in dealing with the Unencumbered Asset Pool;
(o) Any deficiencies in the Unencumbered Asset Pool or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(p) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Borrowers) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Borrower;
(q) Any modifications of the Loan Documents or any obligation of Borrowers relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(r) Any release of a Borrower or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(s) Any action, occurrence, event or matter consented to by Borrowers under any provision hereof, or otherwise;
(t) The dissolution or termination of existence of any Borrower;
(u) Either with or reliance on without notice to Borrowers, any representation renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(v) Any defense of Borrowers, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations; or
(w) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which Borrowers might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Borrowers hereunder are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 3 contracts
Samples: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Waiver of Defenses. The Contributor To the extent permitted by applicable law, the Equity Investor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, relinquishes all rights or and remedies accorded by applicable Governmental Rules Legal Requirements to sureties or guarantors and agrees not to assert or take advantage of any such right rights or remedies, including:
including (a) any right to require the Collateral Agent or any Secured Party to proceed against the Company Borrower or any other Person person or to proceed against or exhaust any security held by the Collateral Agent or any other Secured Party at any time or to pursue any other remedy in the Collateral Agent’s or any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
Equity Investor, (b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor Borrower or any other Person person or the failure of the Collateral Agent or any other Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor Borrower or any other Person;
person, (c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in required pursuant to the Note Purchase express provisions of this Agreement), including notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the CompanyBorrower, Pledgor or any the Collateral Agent, the Secured PartyParties, any endorser or creditor of the foregoing or on the part of any other Person person under this or any Credit Document;
other instrument in connection with any obligation or evidence of indebtedness held by the Collateral Agent or any Secured Party as collateral or in connection with any of the Secured Obligations, (d) any defense based upon an election of remedies by the Collateral Agent or the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the ContributorEquity Investor, the right of the Contributor Equity Investor to proceed against the Company, Pledgor Borrower or another Person person for reimbursement, or both;
, (e) any defense based on any offset against any amounts which may be owed by any Person person to the Contributor, Equity Investor or the Company or Pledgor or Borrower for any reason whatsoever;
, (f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any act, failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor Borrower or the failure by the Company, Pledgor or the Contributor Borrower to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the EPC Contract, the Credit Documents;
Agreement or any other Transaction Document, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal (provided that in no event shall the obligations of the Equity Investor hereunder exceed its Equity Commitment), (h) any defense, setoff or counterclaim which may at any time be available to or asserted by the CompanyBorrower against the Collateral Agent, Pledgor or the Contributor against any Secured Party Parties or any other Person person under the EPC Contract, the Credit Documents based on Agreement or related to the bankruptcy or insolvency of the Company or Pledgor;
other Transaction Document, (i) any duty on the part of the Collateral Agent or any Secured Party to disclose to the Contributor Equity Investor any facts such the Collateral Agent or any Secured Party may now or hereafter know about the Company or PledgorBorrower, regardless of whether such the Collateral Agent or any Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor Equity Investor intends to assume, or have reason to believe that such facts are unknown to the ContributorEquity Investor, or have a reasonable opportunity to communicate such facts to the Contributor (Equity Investor, since the Contributor acknowledging Equity Investor acknowledges that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
Borrower, (j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the EPC Contract, the Credit Documents Agreement or any other Transaction Document or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the EPC Contract, the Credit Documents (Agreement or any other than this Agreement);
Transaction Document, (k) any defense arising because of the Collateral Agent’s or any Secured Party’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code, (l) any defense based upon any borrowing or grant of a security interest under Section 364 of the Federal Bankruptcy Code of the United States; and
and (lm) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by the Collateral Agent or any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (in each of the foregoing cases other than setoff against the Contributor orthan, subject to Section 4.43.1, the defense of payment of the applicable amounts).
Appears in 2 contracts
Samples: Equity Commitment Agreement (Dynegy Holdings Inc), Equity Commitment Agreement (Dynegy Holdings Inc)
Waiver of Defenses. The Contributor hereby unconditionally Guarantor agrees that the obligations, covenants and irrevocably agreements of Guarantor under this Guaranty shall not be affected or impaired by any act of Owner, or any event or condition except full performance of the Guaranteed Obligations. Guarantor agrees that, without full performance of the Guaranteed Obligations, the liability of Guarantor hereunder shall not be discharged, and Guarantor waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
defense based on (a) any right to require any Secured Party to proceed against lack of authority or bankruptcy or insolvency of the Company Owner, Developer, Master Lessee or any other Person person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
entity; (b) any defense that may arise by reason failure of Owner to commence action against the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor Developer or any other Person person or the failure of any Secured Party entity, or to file or enforce a claim against the estate (either in administration, bankruptcy bankruptcy, or any other proceeding) of the Company, Pledgor Developer or any other Person;
person or entity; (c) demandany election of remedies by the Owner or any other person or entity which destroys or otherwise impairs any subrogation rights of Guarantor or the right of Guarantor to proceed against Developer, presentment, protest and notice of Owner or any kind other person or entity for reimbursement; (other than d) any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action failure on the part of the CompanyOwner to ascertain the extent or nature of the liability of any person or entity liable for the obligations of Developer under the PFDA, Pledgor or any Secured Party, any endorser or creditor of the foregoing or failure on the part of Owner or any other Person person or entity to disclose to Guarantor any material facts affecting the obligations of Developer under any Credit Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
PFDA; (e) any defense based on any offset against any amounts which may be owed lack of acceptance or notice of acceptance of this Guaranty by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
Owner; (f) any defense based upon any Governmental Rule which provides that lack of presentment, demand, protest, or notice of demand, protest, nonpayment or nonperformance with respect to the obligation obligations of a surety must be neither larger in amount nor in other respects more burdensome than that of Developer under the principal;
PFDA; (g) any defense based on lack of due diligence by Owner in obtaining reimbursement from any failure to act, delay person or omission whatsoever on entity now or hereafter liable for the part obligations of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it Developer under the Credit Documents;
PFDA; (h) any defense, setoff deficiency in the ability of Owner to collect from any persons or counterclaim which may at any entities now or hereafter liable for the obligations of Developer under the PFDA; (i) the renewal or extension of time be available to for the payment or asserted by performance of the Company, Pledgor or the Contributor against any Secured Party Guaranteed Obligations or any other Person under the Credit Documents based on or related agreement relating to the bankruptcy Guaranteed Obligations, whether made with or insolvency without the knowledge or consent of Guarantor; G) any transfer, waiver, compromise, settlement, surrender or release of the Company provisions of the PFDA (provided that the PFDA shall not be modified or Pledgor;
amended and no Change Order will be approved by Owner without the prior written consent of Guarantor); (ik) any duty on the part existence of any Secured Party defenses to disclose to enforcement of the Contributor provisions of the PFDA other than mandatory counter-claims; (1) the existence of any facts such Secured Party may now set-off, claim, reduction or hereafter know about diminution of the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assumeGuaranteed Obligations, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment underkind or nature, or in any other term ofwhich Guarantor may have against Developer, the Credit Documents Owner or any other amendmentperson or entity or which any party has against Owner; (m) the addition of any and all other indorsers, renewalguarantors, extension, acceleration, compromise obligors and other persons liable for the payment and performance of the Guaranteed Obligations and the acceptance of any and all other security for the payment and performance of the Guaranteed Obligations; all whether or waiver of not Guarantor shall have had notice or knowledge or any consent act or omission referred to departure from in the terms foregoing clauses (a) through (m) of the Credit Documents (other than this Agreement);
(k) Paragraph. Guarantor intends that Guarantor shall remain liable hereunder as a principal until all Guaranteed Obligations shall have been satisfied in full, notwithstanding any defense based upon any borrowing fact, act, event or grant occurrence which might otherwise operate as a legal or equitable discharge of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) surety or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)guarantor.
Appears in 2 contracts
Samples: Master Funding and Development Agreement (Adeptus Health Inc.), Master Funding and Development Agreement (Adeptus Health Inc.)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Borrowers and the Subsidiary Guarantors hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Borrowers or the Subsidiary Guarantors or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Borrower or a Subsidiary Guarantor hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Borrowers or the Subsidiary Guarantors pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Borrower, the CompanySubsidiary Guarantors, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of Borrowers or the foregoing Subsidiary Guarantors or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Borrower or a Subsidiary Guarantor or the Contributor, the right rights of the Contributor a Borrower or a Subsidiary Guarantor to proceed against the Company, Pledgor other Borrowers or another Person the other Subsidiary Guarantors for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsBorrowers;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to Borrowers or the Contributor Subsidiary Guarantors any facts such Secured Party Agent or any Lender may now or hereafter know about Borrowers or the Company Subsidiary Guarantors or Pledgorthe Collateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which each Borrower or the Contributor Subsidiary Guarantors intends to assume, assume or have has reason to believe that such facts are unknown to Borrowers or the Contributor, Subsidiary Guarantors or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Borrowers, it being understood and agreed that it each Borrower and each Subsidiary Guarantor is fully responsible for being and keeping informed of the financial condition of the Company other Borrowers and Pledgor)the Subsidiary Guarantors, of the condition of the Collateral Property or the Collateral and of any and all circumstances bearing on the risk that liability may be incurred by Borrowers or the Subsidiary Guarantors hereunder and under the other Loan Documents;
(i) Any inaccuracy of any representation made by or on behalf of any Borrower or the Subsidiary Guarantors contained in any Loan Document;
(j) Subject to compliance with the provisions of this Agreement, any defense based on any change in sale or assignment of the time, manner or place of any payment underLoan Documents, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)interest therein;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon sale or assignment by a Borrower, a Subsidiary Guarantor or any borrowing other Person of any Collateral, or grant of a security any portion thereof or interest under Section 364 of the Bankruptcy Code of the United States; andtherein, not consented to by Agent or any Lender;
(l) Any invalidity, irregularity or unenforceability, in whole or in part, of any one or more of the Loan Documents;
(m) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(n) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other circumstance (including any statute of limitationsBorrowers or the Subsidiary Guarantors) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Borrower, the Subsidiary Guarantors or the Collateral owned by it;
(o) Any modifications of the Loan Documents or any obligation of Borrowers or the Subsidiary Guarantors relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(p) Any release of a Borrower or the Subsidiary Guarantors or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(q) Any action, occurrence, event or matter consented to by Borrowers or the Subsidiary Guarantors under any provision hereof, or otherwise;
(r) The dissolution or termination of existence of any Borrower or reliance on any representation Subsidiary Guarantor;
(s) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(t) Any defense of Borrowers or the Subsidiary Guarantors, other than that of prior performance, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations;
(u) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which Borrowers or the Subsidiary Guarantors might otherwise constitute a defense available tobe entitled, it being the intention that the obligations of Borrowers or discharge ofthe Subsidiary Guarantors hereunder are absolute, unconditional and irrevocable; or
(v) Subject to compliance with the provisions of this Agreement, any guarantor lack of notice of disposition or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense manner of payment disposition of the applicable amounts)any Collateral except for notices required by law.
Appears in 2 contracts
Samples: Credit Agreement (City Office REIT, Inc.), Credit Agreement (City Office REIT, Inc.)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(a) The obligations of each Guarantor under this Clause 16 (Guarantee and Indemnity – Subsidiaries) will not be affected or discharged by an act, omission, matter or thing which, but for this Clause would reduce, release or prejudice any right of its obligations under this Clause 16 (Guarantee and Indemnity – Subsidiaries) (without limitation and whether or not known to require any Secured Party to proceed against the Company it or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Finance Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;including:
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now time, waiver or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assumeconsent granted to, or have reason to believe that such facts are unknown to the Contributorcomposition with, any Obligor or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor)other person;
(jii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any defense based on incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
(v) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security, including, without limitation, any change in the timepurpose of, manner any extension of or place any increase in any facility or the addition of any payment undernew facility under any Finance Document or other document or security;
(vi) any unenforceability, illegality or in invalidity of any other term of, the Credit Documents obligation of any person under any Finance Document or any other amendment, renewal, extension, acceleration, compromise document or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)security;
(kvii) any defense based upon any borrowing bankruptcy, insolvency or grant of a security interest under Section 364 of the Bankruptcy Code of the United Statessimilar proceedings; andor
(lviii) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any guarantor or surety Obligor.
(other than setoff against the Contributor orb) Each Guarantor unconditionally and irrevocably waives:
(i) diligence, subject to Section 4.4presentment, the defense demand for performance, notice of payment non-performance, protest, notice of protest, notice of dishonour, notice of the applicable amounts)creation or incurring of now or additional indebtedness of the Obligors to the Finance Parties, notice of acceptance of this guarantee, and notices of any other kind whatsoever;
(ii) the filing of any claim with any court in the event of a receivership, insolvency, bankruptcy, liquidation or judicial management;
(iii) the benefit of any statute of limitations affecting any Obligor’s obligations under the Finance Documents or such Guarantor’s obligations under this guarantee or the enforcement of this guarantee; and
(iv) any offset or counterclaim or other right, defence or claim based on, or in the nature of, any obligation now or later owed to such Guarantor by the other Obligors or any Finance Party.
Appears in 2 contracts
Samples: Credit Agreement (DHT Holdings, Inc.), Credit Agreement (DHT Holdings, Inc.)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental RulesApplicable Law, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Credit Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Credit Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Credit Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any security for the Obligations or insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Credit Parties pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Credit Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Credit Parties or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Credit Party or the Contributor, the right rights of the Contributor a Credit Party to proceed against the Company, Pledgor or another Person other Credit Parties for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsParties;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor any Credit Party any facts such Secured Party Agent or any Lender may now or hereafter know about the Company or Pledgora Credit Party, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor such Credit Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, such Credit Party or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging any Credit Party, it being understood and agreed that it each Credit Party is fully responsible for being and keeping informed of the financial condition of the Company other Credit Parties, of the condition of the Unencumbered Properties and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Credit Parties hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation or other provision contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Credit Party or any other circumstance Person of any Unencumbered Properties, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any lack of commercial reasonableness in dealing with the Obligations;
(o) Any deficiencies in the Unencumbered Properties or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(p) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Credit Parties) or any other stay provided under any other Debtor Relief Law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Credit Party or the Unencumbered Property owned by it;
(q) Any modifications of the Loan Documents or any obligation of Credit Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other Debtor Relief Law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(r) Any release of a Credit Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(s) Any action, occurrence, event or matter consented to by the Agent or the Lenders under any provision hereof, or otherwise;
(t) The dissolution or termination of existence of any Credit Party;
(u) Either with or reliance on without notice to the Credit Parties, any representation renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(v) Any defense of the Credit Parties, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations; or
(w) To the fullest extent permitted by law, any Secured other legal, equitable or surety defenses whatsoever to which any Credit Party that might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of each Credit Party hereunder are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT, Inc.)
Waiver of Defenses. (a) The Contributor hereby unconditionally liabilities and irrevocably waives and relinquishesobligations of each of the Guarantors under this Section 11 shall remain in force notwithstanding any act, omission, neglect, event or matter whatsoever whether or not known to the maximum extent permitted by applicable Governmental RulesGuarantors, all rights the Issuer, or remedies accorded by applicable Governmental Rules to sureties or guarantors any Secured Party and agrees not to assert or take advantage of any such right or remediesthe foregoing shall apply, includingwithout limitation, in relation to:
(ai) anything, except full payment of the Secured Obligations, which would have discharged the Guarantors (in whole or in part) whether as co-obligor, or otherwise or which would have afforded the Guarantors any legal or equitable defense;
(ii) any right winding up, dissolution, reconstruction or reorganization, legal limitation, disability, incapacity or lack of corporate power or authority or other circumstances of, or any change in the constitution or corporate identity or loss of corporate identity by the Issuer, the relevant Guarantor, the other Obligors or any of the Secured Parties; and
(iii) anything which renders any of the Obligor’s obligations invalid or unenforceable under this Agreement or any loan Document to require which it is a party, and any Secured Party defense or counterclaim that the Obligor may be able to proceed assert against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;Parties.
(b) any defense that may arise by reason Without limiting the generality of Section 11.5(a), none of the incapacity, lack of power liabilities or authority, death, dissolution, merger, termination or disability obligations of the Company, Pledgor Guarantors under this Section 11 shall be impaired by any Secured Party:
(i) agreeing with the Issuer or any other Person Obligor, on any amendment, variation, assignment, novation or the failure departure (however substantial or material) of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy this Agreement or any other proceeding) Finance Document so that any such amendment, variation, assignment, novation or departure shall, whatever its nature, be binding upon the Guarantors in all circumstances, notwithstanding that it may increase or otherwise affect the liability of the CompanyGuarantors;
(ii) releasing or granting any time or any indulgence of any kind to the Issuer, Pledgor any of the other Obligors or any third party (including, without limitation, the waiver of any conditions precedent an Advance or of any breach of any of the Finance Documents), or entering into any transaction or arrangements whatsoever with or in relation to any of the Obligors that has or may have the effect of releasing or granting any time or any indulgence of any kind to any of the Obligors or any third party;
(iii) taking, accepting, varying, dealing with, abstaining from enforcing, surrendering or releasing any security, right of recourse, set-off or combination or other right or interest held by any Finance Party for the Secured Obligations or in relation to this Agreement or any other Person;Finance Document in such manner as it thinks fit; or
(iv) claiming, proving for, accepting or transferring any payment in respect of the Secured Obligations in any composition by or winding up of any of the Obligors or abstaining from such claiming, proving for, accepting or transferring.
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part each of the Company, Pledgor or Guarantors hereby irrevocably waives any Secured Party, any endorser or creditor right of excussion it may have under Article 2120 in relation to Article 2058 of the foregoing or on the part of any other Person under any Credit Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Civil Code.
Appears in 2 contracts
Samples: Notes Facility and Security Agreement, Notes Facility and Security Agreement (Melco Crown Entertainment LTD)
Waiver of Defenses. The Contributor Holdings hereby unconditionally and irrevocably waives and relinquishes, to expressly waives: (i) notice of the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(a) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions Lenders’ acceptance of this Agreement;
; (bii) any defense that may arise by reason notice of the incapacity, lack existence or creation or non payment of power all or authority, death, dissolution, merger, termination or disability any of the CompanyIndebtedness; (iii) presentment, Pledgor demand, notice of dishonor, protest, and all other notices whatsoever; and (iv) all diligence in collection or protection of or realization upon the Indebtedness or any other Person part thereof, any obligation hereunder, or the failure any security for or guaranty of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or foregoing. No delay on the part of any of the Lenders in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by any of the Lenders of any right or remedy shall preclude other Person or further exercise thereof or the exercise of any other right or remedy. No action of any of the Lenders permitted hereunder shall in any way affect or impair any such Lenders’ rights or Holdings’ obligations under this Agreement. Until all of the Indebtedness has been Paid in Full, Holdings irrevocably and absolutely subordinates any Credit Document;
and all rights of subrogation, contribution, indemnification, recourse, reimbursement and any similar rights against Borrowers, whether these rights arise under an express or implied contract or by operation of law. It is the intention of the parties that, until all of the Indebtedness has been Paid in Full, Holdings shall not be (or be deemed to be) a “creditor” (as defined in Section 101 of the Federal Bankruptcy Code, as the same may be amended) of Borrowers (or any other Guarantor or any other Person) by reason of the existence of this Agreement in the event that a Borrower becomes a debtor in any proceeding under the Federal Bankruptcy Code. This waiver is given to induce Lenders to enter into this Agreement and to extend the credit facilities to Borrowers. Holdings waives any defense based upon or arising by reason of (a) any disability or other defense of any Borrower or any other person; (b) the cessation or limitation from any cause, other than final and irrevocable payment in full, of the Indebtedness; (c) any lack of authority of any officer, director, partner, agent or any other person acting or purporting to act on behalf of a Borrower or any defect in the formation of a Borrower; (d) the application by any Person of the proceeds of any Indebtedness for purposes other than the purposes represented by Borrowers to Agent or Lenders or intended or understood by Agent, Lenders or Holdings; (e) any act or omission by Agent or any Lender which directly or indirectly results in or aids the discharge of a Borrower or any Indebtedness by operation of law or otherwise; or (f) any modification of the Indebtedness, in any form, including without limit the renewal, extension, acceleration or other change in time for payment of the Indebtedness, or other change in the terms of Indebtedness or any part of it, including without limit an increase or decrease of the rate of interest. Holdings waives any defense it may have based upon any election of remedies by Agent or any Lender which destroys its subrogation rights or its right to proceed against a Borrower for reimbursement, including without limit any loss of rights Holdings may suffer by reason of any rights, powers or remedies of a Borrower in connection with any anti-deficiency laws or any other laws limiting, qualifying or discharging the Indebtedness. Without limiting the generality of the foregoing, the obligations of Holdings under this Article 5, and the rights of Agent and Lenders to enforce the same, by proceedings, whether by action at law, suit in equity or otherwise, shall not be in any way affected to the extent permitted by applicable law, by (i) any insolvency, bankruptcy, liquidation, reorganization, readjustment, composition, dissolution, winding up or other proceeding involving or affecting a Borrower, any or all of the Guarantors, Holdings or any other Person including any discharge of, or bar or stay against collecting, all or any of the Indebtedness in or as a result of any such proceeding; (ii) any change in the ownership of any of the capital stock (or other ownership interests) of a Borrower, Holdings, or any other party providing collateral or guarantees for any Indebtedness of Borrowers, or any of its Affiliates; (iii) the election by Agent and Lenders, in any bankruptcy proceeding of any person, to apply or not apply Section 1111(b)(2) of the Bankruptcy Code; (iv) any extension of credit or the grant of any security interest or lien under Section 363 of the Bankruptcy Code; (v) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any person; (vi) the avoidance of any security interest or Lien in favor of Agent or any Lender for any reason; (vii) any action taken by Agent or any Lender that is authorized by this paragraph or any other provision of this Agreement or any Loan Document; or (viii) any other principle or provision of law, statutory or otherwise, which is or might be in conflict with the terms hereof. Holdings hereby waives to the fullest extent possible under applicable law, any defense based upon the doctrine of marshaling of assets or upon an election of remedies by Agent and the Secured PartiesLenders, including including, without limitation, an election to proceed proceeds by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) and any defense based upon any Governmental Rule statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts).
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (PMFG, Inc.), Revolving Credit and Term Loan Agreement (Peerless Manufacturing Co)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Loan Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Loan Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Loan Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to the Loan Parties pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Loan Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Loan Parties or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Loan Party or the Contributor, the right rights of the Contributor a Loan Party to proceed against the Company, Pledgor or another Person other Loan Parties for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsLoan Parties;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Borrower any facts such Secured Party Agent or any Lender may now or hereafter know about Loan Parties or the Company or PledgorCollateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Loan Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Borrower or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Borrower, it being understood and agreed that it each Loan Party is fully responsible for being and keeping informed of the financial condition of the Company other Loan Parties, of the condition of the Collateral Property or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Loan Parties hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation made by or on behalf of any Loan Party contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Loan Party or any other circumstance Person of any Collateral, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(o) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Loan Parties) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Loan Party or the Collateral owned by it;
(p) Any modifications of the Loan Documents or any obligation of the Loan Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(q) Any release of a Loan Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(r) Any action, occurrence, event or matter consented to by the Loan Parties under any provision hereof, or otherwise;
(s) The dissolution or termination of existence of any Loan Party;
(t) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or reliance on another changes in the Obligations, including but not limited to any representation material alteration of the terms of payment or performance of the Obligations;
(u) Any defense of the Loan Parties, other than that of prior performance, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations;
(v) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which the Loan Parties might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Loan Parties hereunder and under the other Loan Documents are absolute, unconditional and irrevocable; or
(w) Subject to compliance with the provisions of this Agreement, any guarantor lack of notice of disposition or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense manner of payment disposition of the applicable amounts)any Collateral except for notices required by law.
Appears in 2 contracts
Samples: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.), Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Waiver of Defenses. Each Grantor waives the benefit of any and all defenses and discharges available to a guarantor, surety, indorser or accommodation party, dependent on its character as such. Without limiting the generality of the foregoing, each Grantor (in such capacity) waives presentment, demand for payment and notice of nonpayment or protest of any note or other instrument evidencing any of the Obligations; and each Grantor agrees that each Grantor’s liability hereunder and the Security Interest hereby created shall not be affected or impaired in any way by any of the following acts and things (which the Secured Party may do from time to time without notice to each Grantor): (a) by any sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or other disposition of any of the Obligations or any evidence thereof or any collateral therefor, (b) by any acceptance or release of collateral for or guarantors of any of the Obligations, (c) by any failure, neglect or omission to realize upon or protect any of the Obligations or to obtain, perfect, enforce or realize upon any collateral therefor or to exercise any Lien upon or right of appropriation of any moneys, credits or property toward the liquidation of any of the Obligations, (d) by any application of payments or credits upon any of the Obligations, or (e) by any irregularity or avoidability of the Obligations (including any avoidability of the Obligations or fraudulent transfers or fraudulent conveyances under any applicable law). The Contributor hereby unconditionally and irrevocably waives and relinquishesSecured Party shall not be required, before exercising its rights under this Agreement, to first resort for payment of any of the maximum extent permitted by applicable Governmental RulesObligations to the Borrower or any other Person, all its or their properties or estates, or any collateral, property, Liens or other rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and whatsoever. Each Grantor agrees not to assert or take advantage of any such right or remedies, including:
(a) exercise any right of contribution, recourse, subrogation or reimbursement available to require any Secured Party to proceed each Grantor against the Company Borrower or any other Person or property, unless and until all Obligations and all other debts, liabilities and obligations owed by the Borrower and each Grantor to proceed against or exhaust any security held by any the Secured Party at any time or have been paid and discharged. Each Grantor expects to pursue any other remedy derive benefits from the transactions resulting in any the creation of the Obligations. The Secured Party may rely conclusively on the continuing warranty, hereby made, that each Grantor continues to be benefited by the Secured Party’s power before proceeding against extension of credit accommodations to the Contributor Borrower, and the Secured Party shall have no duty to enforce inquire into or confirm the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure receipt of any Secured Party to file or enforce a claim against the estate (in administrationsuch benefits, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
(d) any defense based upon an election of remedies this Agreement shall be effective and enforceable by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person Party without regard to the Contributorreceipt, the Company nature or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part value of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)benefits.
Appears in 2 contracts
Samples: Pledge and Security Agreement, Pledge and Security Agreement (Gaming Partners International CORP)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably Guarantor waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(ai) any right to require any Secured Party Callaway Golf to proceed against the Company Borrower, any other guarantor, or any other Person person or to proceed entity, or against or exhaust any security now or hereafter held by any Secured Party at any time Callaway Golf, or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
whatsoever; (b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(fii) any defense based upon any Governmental Rule which provides legal disability of the Borrower or of any other guarantor or any discharge or limitation of the liability of the Borrower or of any other guarantor to Callaway Golf, or any restraint or stay applicable to actions against the Borrower or against any other guarantor, whether such disability, discharge, limitation, restraint, or stay is consensual, arises by order of a court or other governmental authority, or arises by operation of law or any liquidation, reorganization, receivership, bankruptcy, insolvency or debtor-relief proceeding, or from any other cause, including, without limitation, any defense to the payment of interest, attorneys' fees and costs, and other charges that otherwise would accrue or become payable in respect of the Guarantied Obligations after the commencement of any such proceeding, it being the intent of the parties that the obligation Guarantied Obligations shall be determined without regard to any rule of a surety must be neither larger in amount nor in law or order that may relieve the Borrower of any portion of such obligations; (iii) setoffs, counterclaims, presentment, demand, protest, notice of protest, notice of non-payment, or other respects more burdensome than that notice of the principal;
any kind; (giv) any defense based on any failure to act, delay or omission whatsoever on upon the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendmentmodification, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms other alteration of the Credit Documents Guarantied Obligations; (other than this Agreement);
(kv) any defense based upon the negligence of Callaway Golf, including, without limitation, the failure to record an interest under a deed of trust, the failure to perfect any borrowing security interest, or grant the failure to file a claim in any bankruptcy of the Borrower or of any other guarantor; (vi) any defense based upon a statute of limitations (to the fullest extent permitted by law), and any defense based upon Callaway Golf's delay in enforcing this Guaranty or any other agreement; (vii) any defense based upon or arising out of any defense that the Borrower may have to the performance of any part of the Guarantied Obligations; (viii) any defense to recovery by Callaway Golf of a deficiency after non-judicial sale of real or personal property; any defense based upon the unavailability to Callaway Golf of recovery of a deficiency judgment after non-judicial sale of real or personal property; and any defense based upon or arising out of any of Sections 580a (which would otherwise limit Guarantor's liability after a nonjudicial foreclosure sale to the difference between the obligations guarantied hereby and the fair market value of the property or interest sold at such nonjudicial foreclosure sale), 580b and 580d (which would otherwise limit Callaway Golf's right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively), or 726 (which, among other things, would otherwise require Callaway Golf to exhaust all of its security interest before a personal judgment may be obtained for a deficiency) of the California Code of Civil Procedure (including but not limited to any fair value limitations under Section 364 580a or 726 of such Code) or based upon or arising out of Division 9 of the Bankruptcy Code California Uniform Commercial Code; (ix) any defense based upon the death, incapacity, lack of authority, or termination of existence of, or revocation hereof by, any person or entity or persons or entities, or the substitution of any party hereto; (x) any defense based upon or related to the Guarantor's lack of knowledge as to the Borrower's financial condition; (xi) any defense based upon the impairment of any subrogation or reimbursement rights that the Guarantor might have, including any defense or right based upon the acceptance by Callaway Golf or an affiliate of Callaway Golf of a deed in lieu of foreclosure without extinguishing the Guarantied Obligations, even if such acceptance destroys, alters, or otherwise impairs subrogation rights of the United StatesGuarantor, the right of the Guarantor to proceed against the Borrower for reimbursement, or both; and
(lxii) any other circumstance right to designate the application of any sums or property received by Callaway Golf; and (including xiii) any statute right or defense that is or may become available to the Guarantor by reason of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject California Civil Code Sections 2787 to Section 4.4, the defense of payment of the applicable amounts)2855.
Appears in 2 contracts
Samples: Guaranty (Saint Andrews Golf Corp), Guaranty (All American Sportpark Inc)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Loan Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Loan Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Loan Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Loan Parties pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Loan Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Loan Parties or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Loan Party or the Contributor, the right rights of the Contributor a Loan Party to proceed against the Company, Pledgor or another Person other Loan Parties for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsLoan Parties;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Loan Parties any facts such Secured Party Agent or any Lender may now or hereafter know about Loan Parties or the Company or PledgorEligible Real Estate Assets, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Loan Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Loan Parties or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Loan Parties, it being understood and agreed that it each Loan Party is fully responsible for being and keeping informed of the financial condition of the Company other Loan Parties, of the condition of the Eligible Real Estate Asset and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by Loan Parties hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation or other provision contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Loan Party or any other circumstance Person of any Eligible Real Estate Assets, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any lack of commercial reasonableness in dealing with the Unencumbered Asset Pool;
(o) Any deficiencies in the Unencumbered Asset Pool or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(p) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Loan Parties) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Loan Party;
(q) Any modifications of the Loan Documents or any obligation of Loan Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(r) Any release of a Loan Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(s) Any action, occurrence, event or matter consented to by Loan Parties under any provision hereof, or otherwise;
(t) The dissolution or termination of existence of any Loan Party;
(u) Either with or reliance on without notice to Loan Parties, any representation renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(v) Any defense of Loan Parties, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations; or
(w) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which Loan Parties might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Loan Parties hereunder are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 2 contracts
Samples: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum fullest extent permitted by applicable Governmental Ruleslaw, all the liability of and the security rights granted by the Pledgor hereunder or remedies accorded pursuant hereto in respect of the Secured Obligations shall not be prejudiced, affected or diminished by applicable Governmental Rules any act, omission or circumstance which, but for this provision, might operate to sureties release, discharge or guarantors and agrees not reduce the efficacy of the security interests granted hereunder or pursuant hereto or to assert release, discharge or take advantage otherwise exonerate the Pledgor from any of any such right the Secured Obligations or remediesthe Foreign Obligations, including, whether or not known to the Pledgor or the Pledgee:
(a) any right time, waiver or indulgence granted to require any Secured Party to proceed against or composition with the Company Pledgor or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreementperson;
(b) the taking, variation, compromise, renewal or release of, or refusal or neglect to perfect or enforce, any defense that may arise rights, remedies or securities against or granted by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPledgor;
(c) demandany variation of, presentment, protest and notice or extension of the due date for performance of any kind term of any agreement in connection with the Foreign Obligations or the Secured Obligations (other than any notice expressly contemplated herein to the extent that the Pledgor’s obligations in respect of such Foreign Obligations or such Secured Obligations shall apply to such term as varied or in respect of the Note Purchase Agreement)extended due date) or any increase, creation reduction, exchange, acceleration, renewal, surrender, release or incurring loss of or failure to perfect any new of the Foreign Obligations or additional indebtedness the Secured Obligations or obligation any security therefor or of any action non-presentment or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part observance of any other Person under formality in respect of any Credit Documentinstruments;
(d) the transfer by any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the ContributorGuaranteed Parties of all or any of its rights, benefits and/or obligations under the right of the Contributor Credit Agreement or any other agreement to proceed against the Company, Pledgor which it is party to another person or another Person for reimbursement, or bothentity;
(e) the insolvency (including bankruptcy (faillissement) or moratorium (surséance van betaling)), or liquidation, dissolution or any defense based on any offset against any amounts which may be owed by any Person to change in the Contributor, name or constitution of the Company or Pledgor or for any reason whatsoever;Pledgor; or
(f) any defense based upon irregularity, unenforceability or invalidity of any Governmental Rule which provides (but not all) of the Secured Obligations or of the obligations of any other person or any present or future law or order of any government or authority (whether of right or in fact) purporting to reduce or otherwise affect any of such obligations to the intent that the obligation of a surety must Pledgor’s obligations under this Deed shall remain in full force and this Deed and the term “Secured Obligations” shall be neither larger in amount nor in other respects more burdensome than that construed accordingly as if there were no such irregularity, unenforceability, invalidity, law or order. To the extent possible under the laws of the principal;
(g) any defense based on any failure to actNetherlands the term “Secured Obligations” shall include all items which would be Secured Obligations but for the liquidation, delay absence of legal personality or omission whatsoever on the part incapacity of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)limitation.
Appears in 2 contracts
Samples: Pledge of Receivables, Agreement and Deed of the Creation of a First Ranking Right of Pledge of Receivables (Affiliated Computer Services Inc)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors New York law and agrees not to assert or take advantage of notwithstanding any such right or remedies, including:
(a) any right to require any Secured Party to proceed against contrary principles under the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part laws of any other Person under jurisdiction, each of the Guarantors hereby waives any Credit Document;
(d) any defense based upon an election and all defenses to which it may be entitled, whether at common law, in equity or by statute which limits the liability of, or exonerates, guarantors or which may conflict with the terms of remedies by the Secured Partiesthis ARTICLE X, including an election to proceed by non-judicial rather than judicial foreclosurefailure of consideration, which destroys breach of warranty, statute of frauds, merger or otherwise impairs the subrogation rights consolidation of the ContributorBorrower, statute of limitations, accord and satisfaction and usury. Without limiting the generality of the foregoing, each of the Guarantors consents that, without notice to such Guarantor and without the necessity for any additional endorsement or consent by such Guarantor, and without impairing or affecting in any way the liability of such Guarantor hereunder, the right of Administrative Agent and the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which Participating Lenders may at any time be available and from time to time, upon or asserted by without any terms or conditions and in whole or in part, (a) change the Companymanner, Pledgor place or terms of payment of, and/or change or extend the Contributor against time or payment of, renew or alter, any Secured Party of the Obligations, any security therefor, or any liability incurred directly or indirectly in respect thereof, and this ARTICLE X shall apply to the Obligations as so changed, extended, renewed or altered; (b) exercise or refrain from exercising any right against the Borrower or others (including the Guarantors) or otherwise act or refrain from acting, (c) settle or compromise any of the Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any such liability (whether due or not) of the Borrower to creditors of the Borrower other Person than the Administrative Agent and the Participating Lenders and the Guarantors, (d) apply any sums by whomsoever paid or howsoever realized, other than payments of the Guarantors of the Obligations, to any liability or liabilities of the Borrower under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Transaction Documents or any other amendmentinstruments or agreements referred to herein or therein, renewal, extension, acceleration, compromise to the Administrative Agent and the Participating Lenders regardless of which of such liability or waiver liabilities of the Borrower under the Transaction Documents or any instruments or agreements referred to herein or therein remain unpaid; (e) consent to departure from or waive any breach of, or any act, omission or default under the Obligations or any of the instruments or agreements referred to in this Agreement and the other Transaction Documents, or otherwise amend, modify or supplement the Obligations or any of such instruments or agreements, including the Transaction Documents; and/or (f) request or accept other support of the Obligations or take and hold any security for the payment of the Obligations or the obligations of the Guarantors under this ARTICLE XI, or allow the release, impairment, surrender, exchange, substitution, compromise, settlement, rescission or subordination thereof. Furthermore, each of the Guarantors hereby waives to the extent permitted by law any right to which it may be entitled to under Articles 2830, 2836, 2842, 2845, 2846, 2848 and 2849 of the Mexican Federal Civil Code and related Articles contained in the Civil Codes of the States in Mexico. The Guarantors further expressly waive the benefits of order, excusión y division contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2837, 2838, 2840, 2841 and other related Articles of the Mexican Federal Civil Code and related Articles contained in other Civil Codes of the States of Mexico. The Guarantors hereby represent that the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant each such provision of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject each such civil code are known in form and substance to Section 4.4, the defense of payment of the applicable amounts)each such Guarantor.
Appears in 2 contracts
Samples: Credit Agreement (Cemex Sa De Cv), Credit Agreement (Cemex Sa De Cv)
Waiver of Defenses. The Contributor obligations of each Subsidiary Guarantor under this Section 18 and in respect of any security provided by or pursuant to the Security Documents are irrevocable, absolute and unconditional and shall not be affected or discharged by an act, omission, matter or thing which, but for this Section 18.4, would reduce, release or prejudice any of its obligations under this Section 18 or in respect of any security provided by or pursuant to the Security Documents (without limitation and whether or not known to it or any Creditor) including (and each Subsidiary Guarantor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights any defenses it may now have or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of hereafter acquire in any such right or remedies, including:way relating to):
(a) any right to require time, waiver or consent granted to, or composition with, any Secured Credit Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreementperson;
(b) the release of any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor other Credit Party or any other Person or person under the failure terms of any Secured Party to file composition or enforce a claim against the estate (in administration, bankruptcy or arrangement with any other proceeding) creditor of any member of the Company, Pledgor or any other PersonGroup;
(c) demandthe taking, presentmentvariation, protest and notice of compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any kind (rights against, or security over assets of, any Credit Party or other than person or any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action non-presentation or non-action on the part observance of the Company, Pledgor any formality or other requirement in respect of any instrument or any Secured Party, any endorser or creditor of failure to realize the foregoing or on the part full value of any other Person under any Credit Documentcollateral;
(d) any defense based upon an election incapacity or lack of remedies by power, authority or legal personality of or dissolution or change in the Secured Partiescorporate or company structure, shareholders, members or status of a Credit Party or any other person (including an election to proceed by non-judicial rather than judicial foreclosure, which destroys without limitation any change in the holding of such Credit Party’s or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or bothother person’s Equity Interests);
(e) any defense based on amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any offset against Transaction Document or any amounts which may be owed by other document or security including, without limitation, any Person to change in the Contributorpurpose of, any extension of or any increase in any facility or the Company addition of any new facility under any Transaction Document or Pledgor other document or for any reason whatsoeversecurity;
(f) any defense based upon unenforceability, illegality or invalidity of any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in any person under any Transaction Document or any other respects more burdensome than that of the principaldocument or security;
(g) any defense based on any failure to actbankruptcy, delay insolvency or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documentssimilar proceedings;
(h) any defenseelection of remedies by a Creditor that in any manner impairs, setoff reduces, releases or counterclaim which may at any time be available otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Subsidiary Guarantor or other rights of such Subsidiary Guarantor to or asserted by the Company, Pledgor or the Contributor proceed against any Secured Party Credit Party, any other guarantor or any other Person under the Credit Documents based on person or related to the bankruptcy entity or insolvency of the Company or Pledgorany collateral;
(i) any duty on the part right of any Secured Party to disclose to the Contributor any facts such Secured Party may now set-off or hereafter know about the Company counterclaim against or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed in respect of the financial condition obligations of the Company and Pledgor);such Subsidiary Guarantor hereunder; or
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Credit Party.
Appears in 2 contracts
Samples: Credit Agreement (SEACOR Marine Holdings Inc.), Credit Agreement (SEACOR Marine Holdings Inc.)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(a) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s 's power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor TPZ Holding or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor TPZ Holding or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice notices expressly contemplated herein or in required to be delivered to the Note Purchase AgreementContributor hereunder), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action non‑action on the part of the Company, Pledgor TPZ Holding or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Financing Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial non‑judicial rather than judicial foreclosure, which destroys or otherwise NY\1952186.17 impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor TPZ Holding or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor TPZ Holding or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor TPZ Holding or the Contributor or the failure by the Company, Pledgor TPZ Holding or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Financing Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor TPZ Holding or the Contributor against any Secured Party or any other Person under the Credit Financing Documents based on or related to the bankruptcy or insolvency of the Company or PledgorTPZ Holding;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or PledgorTPZ Holding, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and PledgorTPZ Holding);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Financing Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Credit Financing Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the U.S. Bankruptcy Code of the United StatesCode; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.45.4, the defense of payment of the applicable amounts).
Appears in 1 contract
Samples: Equity Contribution Agreement (Midamerican Energy Holdings Co /New/)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishesExcept for payment or performance in full of the Guaranteed Obligations, the payment in full by the Guarantor of its obligations under this Guarantee or otherwise as provided in this Guarantee, the Guarantor's obligations under this Guarantee shall not be discharged, impaired or otherwise adversely affected by any act, omission, circumstance, matter or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Guarantee or which might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor, including (whether or not known to the maximum extent permitted by applicable Governmental Rules, all rights Guarantor or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:the Borrower):
(a) any right time, waiver, composition, forbearance or concession given to require any Secured Party to proceed against the Company Borrower or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreementperson;
(b) any defense that may arise by reason of the incapacityassertion of, lack of or failure to assert, or delay in asserting, any right, power or authority, death, dissolution, merger, termination or disability of remedy against the Company, Pledgor Borrower or any other Person person, or the failure in respect of any Secured Party to file or enforce a claim against security for the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonLoans;
(c) demandany amplification, presentmentamendment (however fundamental), protest and notice variation or replacement of the provisions of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation Financing Document or of any action other agreement or non-action on security between the part of Bank and the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit DocumentBorrower;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights failure of the ContributorBorrower or the Guarantor to comply with any requirement of any law, the right of the Contributor to proceed against the Company, Pledgor regulation or another Person for reimbursement, or both;order,
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributordissolution, liquidation, reorganization or other alteration of the Company legal status or Pledgor structure of the Borrower or for any reason whatsoeverthe Guarantor;
(f) any defense based upon purported or actual assignment, transfer, novation or disposal of, or granting any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that participation in, any of the principalLoans to any other party;
(g) any defense based on any failure to actFinancing Document being in whole or in part illegal, delay void, voidable, avoided, invalid, unenforceable or omission whatsoever on the part otherwise of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;limited force and effect; or
(h) any defensetotal or partial failure to realize the value of, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on release, discharge, exchange or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge substitution of, any guarantor or surety (other than setoff against security held by the Contributor or, subject to Section 4.4, the defense of payment Bank in respect of the applicable amounts)Guaranteed Obligations or any of them.
Appears in 1 contract
Samples: Irrevocable Undertaking (Consolidated Water Co LTD)
Waiver of Defenses. The Contributor Sponsor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, relinquishes all rights or and remedies accorded by applicable Governmental Rules Legal Requirements to sureties or guarantors and agrees not to assert or take advantage of any such right rights or remedies, including:
including (a) any right to require any Administrative Agent or the other Secured Party Parties to proceed against the Company any Portfolio Entity or any other Person or to proceed against or exhaust any security held by any Administrative Agent or the other Secured Party Parties at any time or to pursue any other remedy in Administrative Agent's or any other Secured Party’s 's power before proceeding against the Contributor to enforce the provisions of this Agreement;
Sponsor, (b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor any Portfolio Entity or any other Person or the failure of Administrative Agent or any other Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor any Portfolio Entity or any other Person;
, (c) demand, presentment, protest and notice of any kind (other than any kind, including notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Portfolio Entity, Administrative Agent, the Company, Pledgor or any other Secured PartyParties, any endorser or creditor of the foregoing or on the part of any other Person under this or any Credit Document;
other instrument in connection with any obligation or evidence of indebtedness held by Administrative Agent or the other Secured Parties as collateral or in connection with any Obligations, (d) any defense based upon an election of remedies by Administrative Agent or the other Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the ContributorSponsor, the right of the Contributor Sponsor to proceed against the Company, Pledgor a Portfolio Entity or another Person for reimbursement, or both;
, (e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or Sponsor for any reason whatsoever;
, (f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any act, failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or a Portfolio Entity of the failure by the Company, Pledgor or the Contributor a Portfolio Entity to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Portfolio Entity against Administrative Agent, the Company, Pledgor or the Contributor against any other Secured Party Parties or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
Documents, (i) any duty on the part of Administrative Agent or any other Secured Party to disclose to the Contributor Sponsor any facts such Administrative Agent or any other Secured Party may now or hereafter know about the Company or Pledgorany Portfolio Entity, regardless of whether such Administrative Agent or any other Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor Sponsor intends to assume, or have reason to believe that such facts are unknown to the ContributorSponsor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Sponsor, since Sponsor acknowledges that it Sponsor is fully responsible for being and keeping informed of the financial condition of the Company Portfolio Entities and Pledgor);
of all circumstances bearing on the risk of non-payment of any obligations and liabilities hereby guaranteed, (j) the fact that any Portfolio Entity may at any time in the future dispose of all or part of its direct or indirect interest in any other Portfolio Entity, (k) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Credit Documents Documents, (l) any defense arising because of Administrative Agent's or any other than this Agreement);
Secured Party's election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code, and (km) any defense based upon any borrowing or grant of a security interest under Section 364 of the Federal Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Code.
Appears in 1 contract
Samples: Equity Undertaking (NRG Energy Inc)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental RulesApplicable Law, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Credit Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Credit Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Credit Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Borrower pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Credit Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Credit Parties or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Credit Party or the Contributor, the right rights of the Contributor a Credit Party to proceed against the Company, Pledgor or another Person other Credit Parties for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principalthem;
(g) any defense based on any failure Any right or claim of right to act, delay or omission whatsoever on the part cause a marshaling of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under assets of the Credit DocumentsParties;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Credit Parties any facts such Secured Party Agent or any Lender may now or hereafter know about the Company Credit Parties or Pledgorthe Collateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Credit Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Credit Parties or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Credit Parties, it being understood and agreed that it each Credit Party is fully responsible for being and keeping informed of the financial condition of the Company other Credit Parties, of the condition of the Pool Property or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Credit Parties hereunder and under the other Loan Documents;
(i) Any inaccuracy of any representation made by or on behalf of Borrower or any other Credit Party contained in any Loan Document;
(j) Subject to compliance with the provisions of this Agreement, any defense based on any change in sale or assignment of the time, manner or place of any payment underLoan Documents, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)interest therein;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon sale or assignment by a Credit Party or any borrowing other Person of any Collateral, or grant of a security any portion thereof or interest under Section 364 of the Bankruptcy Code of the United States; andtherein, not consented to by Agent or any Lender;
(l) Any invalidity, irregularity or unenforceability, in whole or in part, of any one or more of the Loan Documents;
(m) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(n) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other circumstance (including any statute of limitationsCredit Parties) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Credit Party or the Collateral owned by it;
(o) Any modifications of the Loan Documents or any obligation of the Credit Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(p) Any release of a Credit Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(q) Any action, occurrence, event or matter consented to by the Credit Parties under any provision hereof, or otherwise;
(r) The dissolution or termination of existence of any Credit Party;
(s) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or reliance on another changes in the Obligations, including but not limited to any representation material alteration of the terms of payment or performance of the Obligations;
(t) Any defense of the Credit Parties, other than that of prior performance, including the invalidity, illegality or unenforceability of any of the Obligations;
(u) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which the Credit Parties might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of the Credit Parties hereunder are absolute, unconditional and irrevocable; or
(v) Subject to compliance with the provisions of this Agreement, any guarantor lack of notice of disposition or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense manner of payment disposition of the applicable amounts)any Collateral except for notices required by law.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to (a) To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
the Pledgor hereby waives: (a) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(bi) any defense that may arise by reason of a statute of limitations; (ii) any defense based on the legal disability of any Person or any discharge or limitation of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure liability of any Secured Party Person to file the Lender, whether consensual or enforce a claim against the estate arising by operation of law; (in administrationiii) presentment, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice as expressly contemplated herein or in provided by the Note Purchase AgreementLoan Documents), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
; and (div) any defense based upon an election or arising out of remedies by any defense which any Person may have to the payment or performance of any part of the Secured PartiesObligations (other than the defense of payment).
(b) The Pledgor hereby waives, to the maximum extent permitted by applicable law (i) all rights under any law limiting remedies, including recovery of a deficiency, under an election to proceed obligation secured by non-judicial rather than judicial foreclosurea mortgage or deed of trust on real property if the real property is sold under a power of sale contained in the mortgage, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense and all defenses based on any offset loss whether as a result of any such sale or otherwise, of the Pledgor’s right to recover any amount from any Person, whether by right of subrogation or otherwise; (ii) all rights under any law to require the Lender to pursue the Borrower or any other Person (including the Pledgor under any other obligation of the Pledgor), any security which the Lender may hold, or any other remedy before proceeding against the Pledgor; (iii) all rights of reimbursement or subrogation, all rights to enforce any remedy that the Lender may have against any amounts which may be owed Person, and all rights to participate in any security held by the Lender, in each case until the Secured Obligations have been indefeasibly paid in full and the covenants of the Loan Documents have been performed in full; (iv) all rights to require the Lender to give any notices of any kind, including, without limitation, notices of acceptance, nonpayment, nonperformance, protest, dishonor, default, delinquency or acceleration, or to make any presentments, demands or protests, except as set forth herein or expressly provided in the Credit Agreement or any of the Loan Documents; (v) all rights to assert the bankruptcy or insolvency of any Person as a defense hereunder or as the basis for rescission hereof; (vi) all rights under any law purporting to reduce the Pledgor’s obligations hereunder if the Secured Obligations are reduced other than as a result of payment in cash of such Secured Obligations including, without limitation, any reduction based upon the Lender’s error or omission in the administration of the Secured Obligations; (vii) all defenses based on the incapacity, disability or lack of authority of any other Loan Party or any other Person, the repudiation of the Loan Documents by any Person to the Contributorother Loan Party or any Person, the Company failure by the Lender to enforce any claim against any Person, or Pledgor the unenforceability in whole or for in part of any reason whatsoever;
Loan Documents; (fviii) any defense all suretyship and guarantor’s defenses generally including, without limitation, defenses based upon collateral impairment or any Governmental Rule which provides statute or rule of law providing that the obligation of a surety or guarantor must not exceed or be neither larger in amount nor in other respects more burdensome than that of the principal;
; (gix) all rights to insist upon, plead or in any manner whatever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, marshaling of assets, redemption or similar law, or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance by the Pledgor of its obligations under, or the enforcement by the Lender of, this Agreement; (x) any defense based on any failure to act, delay or omission whatsoever requirement on the part of the Company, Pledgor Lender or the Contributor or holder of any obligations under the failure Loan Documents to mitigate the damages resulting from any default; and (xi) except as otherwise specifically set forth herein, all rights of notice and hearing of any kind prior to the exercise of rights by the Company, Pledgor or Lender upon the Contributor occurrence and during the continuation of an Event of Default to do any act or thing repossess with judicial process or to observe replevy, attach or perform levy upon the Collateral. To the extent permitted by law, the Pledgor waives the posting of any covenantbond otherwise required of the Lender in connection with any judicial process or proceeding to obtain possession of, condition replevy, attach, or agreement levy upon the Collateral, to be observed enforce any judgment or performed other security for the Secured Obligations, to enforce any judgment or other court order entered in favor of the Lender, or to enforce by it under the Credit Documents;
(h) any defensespecific performance, setoff temporary restraining order, preliminary or counterclaim which may at any time be available to or asserted by the Companypermanent injunction, Pledgor or the Contributor against any Secured Party this Agreement or any other agreement or document between the Pledgor and the Lender. The Pledgor further agrees that upon the occurrence and during the continuation of an Event of Default, the Lender may elect to nonjudicially or judicially foreclose against any real or personal property security it holds for the Secured Obligations or any part thereof, or to exercise any other remedy against any Person, any security or any guarantor, even if the effect of that action is to deprive the Pledgor of the right to collect reimbursement from any Person under for any sums paid by the Credit Documents based on or related Pledgor to the bankruptcy or insolvency Lender.
(c) If the Lender may, under applicable law, proceed to realize its benefits under any of the Company Loan Documents giving the Lender a Lien upon any Collateral, whether owned by the Borrower or Pledgor;
(i) by any duty on other Person, either by judicial foreclosure or by non-judicial sale or enforcement, the part Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Agreement. If, in the exercise of any Secured Party to disclose to the Contributor any facts of such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being rights and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term ofremedies, the Credit Documents Lender shall forfeit any of its rights or remedies, including any right to enter a deficiency judgment against the Borrower or any other amendmentPerson, renewalwhether because of any applicable laws pertaining to “election of remedies” or the like, extensionto the extent permitted by applicable law, accelerationthe Pledgor hereby consents to such action by the Lender and waives any claim based upon such action, compromise even if such action by the Lender shall result in a full or waiver partial loss of any rights of subrogation, indemnification or reimbursement which the Pledgor might otherwise have had but for such action by the Lender or the terms herein. Any election of remedies which results in the denial or impairment of the right of the Lender to seek a deficiency judgment against any of the parties to any of the Loan Documents shall not, to the extent permitted by applicable law, impair the Pledgor’s obligation hereunder. In the event the Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, the Lender may bid all or less than the amount of the Secured Obligations. To the extent permitted by applicable law, the amount of the successful bid at any such sale, whether the Lender or any consent other party is the successful bidder, shall be conclusively deemed to departure from be the terms fair market value of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 Collateral and the difference between such bid amount and the remaining balance of the Bankruptcy Code Secured Obligations shall be conclusively deemed to be the amount of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Obligations.
Appears in 1 contract
Samples: Pledge and Security Agreement (James River Group Holdings, Ltd.)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors New York law and agrees not to assert or take advantage of notwithstanding any such right or remedies, including:
(a) any right to require any Secured Party to proceed against contrary principles under the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part laws of any other Person under jurisdiction, each of the Guarantors hereby waives any Credit Document;
(d) any defense based upon an election and all defenses to which it may be entitled, whether at common law, in equity or by statute which limits the liability of, or exonerates, guarantors or which may conflict with the terms of remedies by the Secured Partiesthis Article XI, including an election to proceed by non-judicial rather than judicial foreclosurefailure of consideration, which destroys breach of warranty, statute of frauds, merger or otherwise impairs the subrogation rights consolidation of the ContributorIssuer, statute of limitations, accord and satisfaction and usury. Without limiting the generality of the foregoing, each of the Guarantors consents that, without notice to such Guarantor and without the necessity for any additional endorsement or consent by such Guarantor, and without impairing or affecting in any way the liability of such Guarantor hereunder, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the ContributorAdministrative Agent, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that Issuing Bank and the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which Lenders may at any time be available and from time to time, upon or asserted by without any terms or conditions and in whole or in part, (a) change the Companymanner, Pledgor place or terms of payment of, and/or change or extend the Contributor against time or payment of, renew or alter, any Secured Party of the Obligations, any security therefor, or any liability incurred directly or indirectly in respect thereof, and this Article XI shall apply to the Obligations as so changed, extended, renewed or altered; (b) exercise or refrain from exercising any right against the Issuer or others (including the Guarantors) or otherwise act or refrain from acting, (c) settle or compromise any of the Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any such liability (whether due or not) of the Issuer to creditors of the Issuer other Person than the Administrative Agent, the Issuing Bank and the Lenders and the Guarantors, (d) apply any sums by whomsoever paid or howsoever realized, other than payments of the Guarantors of the Obligations, to any liability or liabilities of the Issuer under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Transaction Documents or any other amendmentinstruments or agreements referred to herein or therein, renewalto the Issuing Bank, extension, acceleration, compromise the Administrative Agent and the Lenders regardless of which of such liability or waiver liabilities of the Issuer under the Transaction Documents or any instruments or agreements referred to herein or therein remain unpaid; (e) consent to departure from or waive any breach of, or any act, omission or default under the terms Obligations or any of the Credit Documents instruments or agreements referred to in this Agreement and the other Transaction Documents, or otherwise amend, modify or supplement the Obligations or any of such instruments or agreements, including the Transaction Documents; and/or (f) request or accept other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 support of the Bankruptcy Code of Obligations or take and hold any security for the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Obligations or the obligations of the Guarantors under this Article XI, or allow the release, impairment, surrender, exchange, substitution, compromise, settlement, rescission or subordination thereof.
Appears in 1 contract
Samples: Reimbursement and Credit Agreement (Cemex Sa De Cv)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(a) The obligations of each Guarantor under this Clause 17 will not be affected by, and each Guarantor irrevocably waives any right defense it might have by virtue of, any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 17 (without limitation and whether or not known to require any Secured Party to proceed against the Company it or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Finance Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;including:
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now time, waiver or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assumeconsent granted to, or have reason to believe that such facts are unknown to the Contributorcomposition with, any Obligor or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor)other person;
(jii) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any security;
(iv) any defense based on any incapacity or lack of power, authority or legal personality of or dissolution or change in the time, manner members or place status of any payment under, or in any other term of, the Credit Documents an Obligor or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)person;
(kv) any defense based upon any borrowing amendment (however fundamental) or grant replacement of a security interest under Section 364 of the Bankruptcy Code of the United States; andFinance Document or any other document or security;
(lvi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;
(vii) any bankruptcy, insolvency, liquidation, judicial management or similar proceedings; or
(viii) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any guarantor or surety Obligor.
(other than setoff against the Contributor orb) Each Guarantor unconditionally and irrevocably waives:
(i) diligence, subject to Section 4.4presentment, the defense demand for performance, notice of payment nonperformance, protest, notice of protest, notice of dishonor, notice of the applicable amounts)creation or incurring of new or additional indebtedness of the Obligors to the Finance Parties, notice of acceptance of this Guarantee, and notices of any other kind whatsoever;
(ii) the filing of any claim with any court in the event of a receivership, insolvency, bankruptcy, liquidation or judicial management;
(iii) the benefit of any statute of limitations affecting any Obligor’s obligations under the Finance Documents or the Guarantor’s obligations under this Guarantee or the enforcement of this Guarantee; and
(iv) any offset or counterclaim or other right, defense, or claim based on, or in the nature of, any obligation now or later owed to the Guarantor by the Obligors or any Finance Party.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Eagle Bulk Shipping Inc.)
Waiver of Defenses. The Each Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental RulesApplicable Law, all rights or remedies accorded by applicable Governmental Rules Applicable Law to sureties or guarantors (other than the defense of payment of the applicable amounts and the defense that the Contributor is not obligated to perform or has fully performed the matter in question) and agrees not to assert or take advantage of any such right or remedies, including:
(a) any right to require any Secured Indenture Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Indenture Party at any time or to pursue any other remedy in any Secured Indenture Party’s power before proceeding against the such Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor either Pipeline Owner or any other Person or the failure of any Secured Indenture Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor either Pipeline Owner or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice notices expressly contemplated herein or in the Note Purchase Agreementrequired to be delivered to such Contributor hereunder), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action non‑action on the part of the Company, Pledgor either Pipeline Owner or any Secured Indenture Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Documentthe Indenture Documents;
(d) any defense based upon an election of remedies by the Secured Indenture Parties, including an election to proceed by non-judicial non‑judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the such Contributor, the right of the such Contributor to proceed against the Company, Pledgor either Pipeline Owner or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the such Contributor, the Company or Pledgor either Pipeline Owner or for any reason whatsoever;
(f) any defense based upon any Governmental Rule Applicable Law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor either Pipeline Owner or the such Contributor or the failure by the Company, Pledgor either Pipeline Owner or the such Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Indenture Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor either Pipeline Owner or the such Contributor against any Secured Indenture Party or any other Person under the Credit Indenture Documents based on or related to the bankruptcy or insolvency of the Company or Pledgoreither Pipeline Owner;
(i) any duty on the part of any Secured Indenture Party to disclose to the such Contributor any facts such Secured Indenture Party may now or hereafter know about the Company or Pledgoreither Pipeline Owner, regardless of whether such Secured Indenture Party has reason to believe that any such facts materially increase the risk beyond that which the such Contributor intends to assume, or have reason to believe that such facts are unknown to the such Contributor, or have a reasonable opportunity to communicate such facts to the such Contributor (the such Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgorthe Pipeline Owners);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Indenture Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Credit Indenture Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United StatesCode; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Indenture Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the such Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts).
Appears in 1 contract
Samples: Contingent Equity Contribution Undertaking (Phillips 66 Partners Lp)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Borrowers hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Borrowers or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Borrower hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Borrowers pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Borrower, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Borrowers or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Borrower or the Contributor, the right rights of the Contributor a Borrower to proceed against the Company, Pledgor or another Person other Borrowers for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsBorrowers;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Borrowers any facts such Secured Party Agent or any Lender may now or hereafter know about Borrowers or the Company or PledgorCollateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Borrower intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Borrowers or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Borrowers, it being understood and agreed that it each Borrower is fully responsible for being and keeping informed of the financial condition of the Company other Borrowers, of the condition of the Mortgaged Property or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by Borrowers hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation or other provision contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Borrower or any other circumstance Person of any Collateral, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any lack of commercial reasonableness in dealing with the Collateral;
(o) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(p) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Borrowers) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Borrower or the Collateral owned by it;
(q) Any modifications of the Loan Documents or any obligation of Borrowers relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(r) Any release of a Borrower or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(s) Any action, occurrence, event or matter consented to by Borrowers under any provision hereof, or otherwise;
(t) The dissolution or termination of existence of any Borrower;
(u) Either with or reliance on without notice to Borrowers, any representation renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(v) Any defense of Borrowers, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations; or
(w) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which Borrowers might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Borrowers hereunder are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes(a) Subject to Section 2.1(c), to the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
the Pledgor hereby waives: (a) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(bi) any defense that may arise by reason of a statute of limitations; (ii) any defense based on the legal disability of any Person or any discharge or limitation of the incapacity, lack liability of power or authority, death, dissolution, merger, termination or disability of any Person to the Company, Pledgor or any other Person Collateral Agent or the failure Secured Parties, whether consensual or arising by operation of any Secured Party to file or enforce a claim against the estate law; (in administrationiii) presentment, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice as expressly contemplated herein or in provided by the Note Purchase AgreementLoan Documents), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
; and (div) any defense based upon an election or arising out of remedies any defense which any Person may have to the payment or performance of any part of the Secured Obligations (other than the defense of payment).
(b) Subject to Section 2.1(c), the Pledgor hereby waives, to the maximum extent permitted by applicable law, (i) all rights under any law to require the Collateral Agent to pursue the Borrower or any other Person (including the Pledgor under any other obligation of the Pledgor), any security which the Collateral Agent may hold, or any other remedy before proceeding against the Pledgor; (ii) all rights of reimbursement or subrogation, all rights to enforce any remedy that the Collateral Agent or the Secured Parties may have against any Person, and all rights to participate in any security held by the Secured PartiesCollateral Agent, including an election in each case until the Termination Date; (iii) all rights to proceed by non-judicial rather than judicial foreclosurerequire the Collateral Agent to give any notices of any kind, which destroys including, without limitation, notices of acceptance, nonpayment, nonperformance, protest, dishonor, default, delinquency or otherwise impairs acceleration, or to make any presentments, demands or protests, except as set forth herein or expressly provided in the subrogation rights Credit Agreement or any of the Contributor, Loan Documents; (iv) all rights to assert the right bankruptcy or insolvency of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person as a defense hereunder or as the basis for rescission hereof; (v) all rights under any law purporting to reduce the ContributorPledgor’s obligations hereunder if the Secured Obligations are reduced other than as a result of payment in Cash of such Secured Obligations including, the Company or Pledgor or for without limitation, any reason whatsoever;
(f) any defense reduction based upon any Governmental Rule which provides Secured Party’s error or omission in the administration of the Secured Obligations; (vi) all defenses based on the incapacity, disability or lack of authority of the Borrower or any other Person, the repudiation of the Loan Documents or the Specified Cash Management Agreements by the Borrower or any Person, the failure by the Collateral Agent or the Secured Parties to enforce any claim against any Person, or the unenforceability in whole or in part of any Loan Documents or the Specified Cash Management Agreements; (vii) all suretyship and guarantor’s defenses generally including, without limitation, defenses based upon collateral impairment or any statute or rule of law providing that the obligation of a surety or guarantor must not exceed or be neither larger in amount nor in other respects more burdensome than that of the principal;
; (gviii) all rights to insist upon, plead or in any manner whatever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, marshaling of assets, redemption or similar law, or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance by the Pledgor of its obligations under, or the enforcement by the Collateral Agent of, this Agreement; (ix) any defense based on any failure to act, delay or omission whatsoever requirement on the part of the Company, Pledgor Collateral Agent or the Contributor holder of any obligations under the Loan Documents or the failure Specified Cash Management Agreements to mitigate the damages resulting from any default; and (x) except as otherwise specifically set forth herein or as required by applicable law, all rights of notice and hearing of any kind prior to the exercise of rights by the Company, Pledgor or Collateral Agent upon the Contributor occurrence and during the continuation of an Event of Default to do any act or thing repossess with judicial process or to observe replevy, attach or perform levy upon the Pledged Collateral. To the extent permitted by law, the Pledgor waives the posting of any covenantbond otherwise required of the Collateral Agent in connection with any judicial process or proceeding to obtain possession of, condition replevy, attach, or agreement levy upon the Pledged Collateral, to be observed enforce any judgment or performed other security for the Secured Obligations, to enforce any judgment or other court order entered in favor of the Collateral Agent, or to enforce by it under the Credit Documents;
(h) any defensespecific performance, setoff temporary restraining order, preliminary or counterclaim which may at any time be available to or asserted by the Companypermanent injunction, Pledgor or the Contributor against any Secured Party this Agreement or any other agreement or document between the Pledgor, the Collateral Agent and the Secured Parties. The Pledgor further agrees that upon the occurrence and during the continuation of an Event of Default, the Collateral Agent may elect to nonjudicially or judicially foreclose against any real or personal property security it holds for the Secured Obligations or any part thereof, or to exercise any other remedy against any Person, any security or any guarantor, even if the effect of that action is to deprive the Pledgor of the right to collect reimbursement from any Person under for any sums paid by the Credit Documents based on or related Pledgor to the bankruptcy Collateral Agent or insolvency any Secured Party.
(c) If the Collateral Agent may, under applicable law, proceed to realize its benefits under any of the Company Loan Documents giving the Collateral Agent a Lien upon any Collateral, whether owned by the Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, the Collateral Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of the rights and remedies of the Collateral Agent under this Agreement. If, in the exercise of any of such rights and remedies, the Collateral Agent shall forfeit any of its rights or remedies, including any right to enter a deficiency judgment against the Borrower or any other Person, whether because of any applicable laws pertaining to “election of remedies” or the like, to the extent permitted by applicable law, the Pledgor hereby consents to such action by the Collateral Agent and waives any claim based upon such action, even if such action by the Collateral Agent shall result in a full or partial loss of any rights of subrogation, indemnification or reimbursement which the Pledgor might otherwise have had but for such action by the Collateral Agent or the terms herein. Any election of remedies which results in the denial or impairment of the right of the Collateral Agent to seek a deficiency judgment against any of the parties to any of the Loan Documents shall not, to the extent permitted by applicable law, impair the Pledgor;’s obligation hereunder. In the event the Collateral Agent shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, the Collateral Agent may bid all or less than the amount of the Secured Obligations.
(id) To the extent permitted by applicable law, the Pledgor shall not assert and hereby waives any duty claim against any Indemnitee, on the part any theory of any Secured Party liability, for special, indirect, consequential or punitive damages (as opposed to disclose to the Contributor any facts such Secured Party may now direct or hereafter know about the Company or Pledgoractual damages) arising out of, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assumein connection with, or have reason to believe that such facts are unknown to the Contributoras a result of, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term ofthis Agreement, the Credit Documents Agreement or any other amendmentagreement or instrument contemplated hereby or thereby, renewalthe Transactions, extension, acceleration, compromise any Loan or waiver Letter of Credit or any consent to departure from the terms use of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)proceeds thereof.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors New York law and agrees not to assert or take advantage of notwithstanding any such right or remedies, including:
(a) any right to require any Secured Party to proceed against contrary principles under the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part laws of any other Person under jurisdiction, each of the Guarantors hereby waives any Credit Document;
(d) any defense based upon an election and all defenses to which it may be entitled, whether at common law, in equity or by statute which limits the liability of, or exonerates, guarantors or which may conflict with the terms of remedies by the Secured Partiesthis ARTICLE IX, including an election to proceed by non-judicial rather than judicial foreclosurefailure of consideration, which destroys breach of warranty, statute of frauds, merger or otherwise impairs the subrogation rights consolidation of the ContributorBorrower, statute of limitations, accord and satisfaction and usury. Without limiting the generality of the foregoing, each of the Guarantors consents that, without notice to such Guarantor and without the necessity for any additional endorsement or consent by such Guarantor, and without impairing or affecting in any way the liability of such Guarantor hereunder, the right of Administrative Agent and the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which Lenders may at any time be available and from time to time, upon or asserted by without any terms or conditions and in whole or in part, (a) change the Companymanner, Pledgor place or terms of payment of, and/or change or extend the Contributor against time or payment of, renew or alter, any Secured Party of the Obligations, any security therefor, or any liability incurred directly or indirectly in respect thereof, and this ARTICLE IX shall apply to the Obligations as so changed, extended, renewed or altered; (b) exercise or refrain from exercising any right against the Borrower or others (including the Guarantors) or otherwise act or refrain from acting, (c) settle or compromise any of the Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any such liability (whether due or not) of the Borrower to creditors of the Borrower other Person than the Administrative Agent and the Lenders and the Guarantors, (d) apply any sums by whomsoever paid or howsoever realized, other than payments of the Guarantors of the Obligations, to any liability or liabilities of the Borrower under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Transaction Documents or any other amendmentinstruments or agreements referred to herein or therein, renewal, extension, acceleration, compromise to the Administrative Agent and the Lenders regardless of which of such liability or waiver liabilities of the Borrower under the Transaction Documents or any instruments or agreements referred to herein or therein remain unpaid; (e) consent to departure from or waive any breach of, or any act, omission or default under the Obligations or any of the instruments or agreements referred to in this Agreement and the other Transaction Documents, or otherwise amend, modify or supplement the Obligations or any of such instruments or agreements, including the Transaction Documents; and/or (f) request or accept other support of the Obligations or take and hold any security for the payment of the Obligations or the obligations of the Guarantors under this ARTICLE IX, or allow the release, impairment, surrender, exchange, substitution, compromise, settlement, rescission or subordination thereof. Furthermore, each of the Guarantors hereby waives to the extent permitted by law any right to which it may be entitled to under Articles 2830, 2836, 2842, 2845, 2846, 2848 and 2849 of the Mexican Federal Civil Code and related Articles contained in the Civil Codes of the States in Mexico. The Guarantors further expressly waive the benefits of order, excusion y division contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2837, 2838, 2840, 2841 and other related Articles of the Mexican Federal Civil Code and related Articles contained in other Civil Codes of the States of Mexico. The Guarantors hereby represent that the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant each such provision of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject each such civil code are known in form and substance to Section 4.4, the defense of payment of the applicable amounts)each such Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Cemex Sa De Cv)
Waiver of Defenses. The Contributor hereby unconditionally Guarantor waives in favor of Beneficiary any and irrevocably waives all of its rights, protection, privileges and relinquishes, to the maximum extent permitted defenses provided by applicable Governmental Ruleslaw to a guarantor, all rights including the provisions in Article 1430, 1831, 1837, 1843, 1847 through 1850 of the Indonesian Civil Code. In addition, the obligations of Guarantor under this Guarantee will not be affected by an act, omission, matter or remedies accorded by applicable Governmental Rules thing which, but for this Guarantee, would reduce, release or prejudice any of its obligations under this Guarantee (without limitation and whether or not known to sureties it or guarantors and agrees not to assert or take advantage of any such right or remedies, Beneficiary) including:
(a) any right to require any Secured Party to proceed against the Company time, waiver or any consent granted to, or composition or arrangement with Obligor or other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this AgreementPerson;
(b) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any defense that may arise by reason rights against, or security over assets of the incapacity, lack of power Obligor or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure any non-presentation or non-observance of any Secured Party to file formality or enforce a claim against the estate (other requirement in administration, bankruptcy respect of any instrument or any other proceeding) failure to realize the full value of the Company, Pledgor or any other Personsecurity;
(c) demandany incapacity or lack of power, presentment, protest and notice authority or legal personality of any kind (other than any notice expressly contemplated herein or dissolution or change in the Note Purchase Agreement)name, creation authorized activities, legal existence, structure or incurring personnel of any new Obligor or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit DocumentPerson;
(d) any defense based upon an election entry into or amendment or modification (however fundamental) or replacement of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys another Relevant Document or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or bothany other document;
(e) any defense based on unenforceability, illegality or invalidity of any offset against any amounts which may be owed by obligation of any Person to the Contributor, the Company under any Relevant Document or Pledgor or for any reason whatsoeverother document;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principalinsolvency or similar proceedings;
(g) this Guarantee or any defense based on other Relevant Document not being executed, effective, or binding against Obligor or any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;other party thereto; and
(h) any defense, setoff other act or counterclaim which may at omission to act or delay of any time be available to or asserted kind by the Company, Pledgor or the Contributor against any Secured Party Obligor or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or PledgorPerson, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendmentcircumstance whatsoever that might, renewalbut for the provisions hereof, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a legal or equitable discharge or defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Guarantor’s obligations hereunder.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Borrowers hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Borrowers or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Borrower hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Borrowers pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Borrower, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Borrowers or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Borrower or the Contributor, the right rights of the Contributor a Borrower to proceed against the Company, Pledgor or another Person other Borrowers for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsBorrowers;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Borrowers any facts such Secured Party Agent or any Lender may now or hereafter know about Loan Parties or the Company or PledgorCollateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Borrower intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Borrowers or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Borrowers, it being understood and agreed that it each Borrower is fully responsible for being and keeping informed of the financial condition of the Company other Loan Parties, of the condition of the Collateral Property or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by Borrowers hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation made by or on behalf of any Loan Party contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Borrower or any other circumstance Person of any Collateral, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(o) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Borrowers) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Loan Party or the Collateral owned by it;
(p) Any modifications of the Loan Documents or any obligation of the Loan Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(q) Any release of a Loan Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(r) Any action, occurrence, event or matter consented to by the Loan Parties under any provision hereof, or otherwise;
(s) The dissolution or termination of existence of any Loan Party;
(t) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or reliance on another changes in the Obligations, including but not limited to any representation material alteration of the terms of payment or performance of the Obligations;
(u) Any defense of the Loan Parties, other than that of prior performance, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations;
(v) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which the Loan Parties might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Loan Parties hereunder and under the other Loan Documents are absolute, unconditional and irrevocable; or
(w) Subject to compliance with the provisions of this Agreement, any guarantor lack of notice of disposition or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense manner of payment disposition of the applicable amounts)any Collateral except for notices required by law.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Credit Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Credit Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Credit Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment of performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to the Credit Parties pursuant to the Loan Documents or as are required to be delivered under any mandatory provision of law), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Credit Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Credit Parties or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Credit Party or the Contributor, the right rights of the Contributor a Credit Party to proceed against the Company, Pledgor or another Person other Credit Parties for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) assets of any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsParty;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis §36.3;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Credit Parties any facts such Secured Party Agent or any Lender may now or hereafter know about the Company Credit Parties or Pledgorthe Collateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Credit Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, any Credit Party or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Credit Parties, it being understood and agreed that it each Credit Party is fully responsible for being and keeping informed of the financial condition of the Company other Credit Parties, of the condition of the Mortgaged Property or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Credit Parties hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation made by or on behalf of any Credit Party contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Credit Party or any other circumstance Person of any Collateral, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any lack of commercial reasonableness in dealing with the Collateral;
(o) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(p) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Credit Parties) or any other stay provided under any other Debtor Relief Law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against any Credit Party or the Collateral owned by it;
(q) Any modifications of the Loan Documents or any obligation of the Credit Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other Debtor Relief Law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(r) Any release of a Credit Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(s) Any action, occurrence, event or matter consented to by the Credit Parties under any provision hereof, or otherwise;
(t) The dissolution or termination of existence of any Credit Party;
(u) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or reliance on another changes in the Obligations, including but not limited to any representation material alteration of the terms of payment or performance of the Obligations;
(v) Any defense of any other Credit Party, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations;
(w) To the fullest extent permitted by law, any Secured other legal, equitable or surety defenses whatsoever to which such Credit Party that might otherwise be entitled, it being the intention that the obligations of the Credit Parties hereunder and under the other Loan Documents, to the extent that they constitute a defense available toguaranty or surety obligations, or discharge ofare absolute, unconditional and irrevocable; or
(x) Subject to compliance with the provisions of this Agreement and the other Loan Documents, any guarantor lack of notice of disposition or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense manner of payment disposition of the applicable amounts)any Collateral except for notices required by law.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors New York law and agrees not to assert or take advantage of notwithstanding any such right or remedies, including:
(a) any right to require any Secured Party to proceed against contrary principles under the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part laws of any other Person under jurisdiction, each of the Guarantors hereby waives any Credit Document;
(d) any defense based upon an election and all defenses to which it may be entitled, whether at common law, in equity or by statute which limits the liability of, or exonerates, guarantors or which may conflict with the terms of remedies by the Secured Partiesthis Article XI, including an election to proceed by non-judicial rather than judicial foreclosurefailure of consideration, which destroys breach of warranty, statute of frauds, merger or otherwise impairs the subrogation rights consolidation of the ContributorIssuer, statute of limitations, accord and satisfaction and usury. Without limiting the generality of the foregoing, each of the Guarantors consents that, without notice to such Guarantor and without the necessity for any additional endorsement or consent by such Guarantor, and without impairing or affecting in any way the liability of such Guarantor hereunder, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the ContributorAdministrative Agent, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that Issuing Bank and the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which Lenders may at any time be available and from time to time, upon or asserted by without any terms or conditions and in whole or in part, (a) change the Companymanner, Pledgor place or terms of payment of, and/or change or extend the Contributor against time or payment of, renew or alter, any Secured Party of the Obligations, any security therefor, or any liability incurred directly or indirectly in respect thereof, and this Article XI shall apply to the Obligations as so changed, extended, renewed or altered; (b) exercise or refrain from exercising any right against the Issuer or others (including the Guarantors) or otherwise act or refrain from acting, (c) settle or compromise any of the Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any such liability (whether due or not) of the Issuer to creditors of the Issuer other Person than the Administrative Agent, the Issuing Bank and the Lenders and the Guarantors, (d) apply any sums by whomsoever paid or howsoever realized, other than payments of the Guarantors of the Obligations, to any liability or liabilities of the Issuer under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Transaction Documents or any other amendmentinstruments or agreements referred to herein or therein, renewalto the Issuing Bank, extension, acceleration, compromise the Administrative Agent and the Lenders regardless of which of such liability or waiver liabilities of the Issuer under the Transaction Documents or any instruments or agreements referred to herein or therein remain unpaid; (e) consent to departure from or waive any breach of, or any act, omission or default under the terms Obligations or any of the Credit Documents instruments or agreements referred to in this Agreement and the other Transaction Documents, or otherwise amend, modify or supplement the Obligations or any of such instruments or agreements, including the Transaction Documents; and/or (f) request or accept other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 support of the Bankruptcy Code of Obligations or take and hold any security for the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Obligations or the obligations of the Guarantors under this Article XI, or allow the release, impairment, surrender, exchange, substitution, compromise, settlement, rescission or subordination thereof. Furthermore, each of the Guarantors hereby waives to the extent permitted by law any right to which it may be entitled to under Articles 2830, 2836, 2842, 2845, 2846, 2848 and 2849 of the Mexican Federal Civil Code and related Articles contained in the Civil Codes of the States in Mexico. The Guarantors further expressly waive the benefits of order, excusion y division contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2837, 2838, 2840, 2841 and other related Articles of the Mexican Federal Civil Code and related Articles contained in other Civil Codes of the States of Mexico.
Appears in 1 contract
Samples: Reimbursement and Credit Agreement (Cemex Sa De Cv)
Waiver of Defenses. The Contributor hereby unconditionally Assignor agrees that Lender may, from time to time, without notice to Assignor, and irrevocably waives and relinquisheswithout affecting, to diminishing, or releasing the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage liability of any such right or remedies, including:
Assignor hereunder (a) retain or obtain and perfect by possession a security interest in any right property to require any Secured Party to proceed against secure the Company Loan, or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
portion thereof, (b) retain or obtain the primary or secondary liability of any defense that may arise by reason of the incapacityparty or parties, lack of power or authorityin addition to Assignor, deathwith respect to Loan, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administrationportion thereof, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) extend or renew for any period (whether or not longer than the original period and on more than one occasion), alter, or exchange any of the Loan or increase or decrease the Loan, (d) release or compromise, or any undertaking of any other party or parties primarily or secondarily liable on any of the Loan, (e) release its security interest, if any, in all or any property securing the Loan, or any portion thereof, and permit any substitution or exchange for any such property (but shall not be obligated to obtain or permit any substitution or exchange), and (f) alter, extend, exchange, modify, release, or cancel any covenant, agreement, or provision contained in a Loan Document. Assignor hereby expressly waives: (i) presentment, demand, presentment, protest and notice of any kind dishonor, protest, and all other notice whatever, except to the extent expressly provided to the contrary herein, (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action ii) all diligence on the part of Lender in collection or protection of, or realization upon, any security for the CompanyLoan, Pledgor or any Secured Partyportion thereof, for enforcing any endorser or creditor remedy available to it under any Loan Document, and (iii) the provisions of Section 10-7-24 of the foregoing Official Code of Georgia Annotated. No right or on power of Assignor or anyone else to assert any claim or defense as to the part invalidity or unenforceability of any other Person under Loan Document or any Credit Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributorother documents evidencing or securing the Loan, or any portion thereof, shall impair or affect the covenants, agreements, and obligations of Assignor hereunder. Assignor agrees that Assignor shall have no right of the Contributor to proceed against the Companysubrogation, Pledgor or another Person for reimbursement, or both;
(e) indemnity whatsoever and no right of recourse to or with respect to any defense based on assets or property of Assignor or to any offset against any amounts which may be owed by any Person to collateral for the ContributorLoan, the Company or Pledgor or for any reason whatsoever;
(f) any defense based even upon any Governmental Rule which provides that the obligation of a surety must be neither larger payment in amount nor in other respects more burdensome than that full of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Loan.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors New York law and agrees not to assert or take advantage of notwithstanding any such right or remedies, including:
(a) any right to require any Secured Party to proceed against contrary principles under the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part laws of any other Person under jurisdiction, each of the Guarantors hereby waives any Credit Document;
(d) any defense based upon an election and all defenses to which it may be entitled, whether at common law, in equity or by statute which limits the liability of, or exonerates, guarantors or which may conflict with the terms of remedies by the Secured Partiesthis ARTICLE IX, including an election to proceed by non-judicial rather than judicial foreclosurefailure of consideration, which destroys breach of warranty, statute of frauds, merger or otherwise impairs the subrogation rights consolidation of the ContributorBorrower, statute of limitations, accord and satisfaction and usury. Without limiting the generality of the foregoing, each of the Guarantors consents that, without notice to such Guarantor and without the necessity for any additional endorsement or consent by such Guarantor, and without impairing or affecting in any way the liability of such Guarantor hereunder, the right of Administrative Agent and the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which Lenders may at any time be available and from time to time, upon or asserted by without any terms or conditions and in whole or in part, (a) change the Companymanner, Pledgor place or terms of payment of, and/or change or extend the Contributor against time or payment of, renew or alter, any Secured Party of the Obligations, any security therefor, or any liability incurred directly or indirectly in respect thereof, and this ARTICLE IX shall apply to the Obligations as so changed, extended, renewed or altered; (b) exercise or refrain from exercising any right against the Borrower or others (including the Guarantors) or otherwise act or refrain from acting, (c) settle or compromise any of the Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any such liability (whether due or not) of the Borrower to creditors of the Borrower other Person than the Administrative Agent and the Lenders and the Guarantors, (d) apply any sums by whomsoever paid or howsoever realized, other than payments of the Guarantors of the Obligations, to any liability or liabilities of the Borrower under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Transaction Documents or any other amendmentinstruments or agreements referred to herein or therein, renewal, extension, acceleration, compromise to the Administrative Agent and the Lenders regardless of which of such liability or waiver liabilities of the Borrower under the Transaction Documents or any instruments or agreements referred to herein or therein remain unpaid; (e) consent to departure from or waive any breach of, or any act, omission or default under the Obligations or any of the instruments or agreements referred to in this Agreement and the other Transaction Documents, or otherwise amend, modify or supplement the Obligations or any of such instruments or agreements, including the Transaction Documents; and/or (f) request or accept other support of the Obligations or take and hold any security for the payment of the Obligations or the obligations of the Guarantors under this ARTICLE IX, or allow the release, impairment, surrender, exchange, substitution, compromise, settlement, rescission or subordination thereof. Furthermore, each of the Guarantors hereby waives to the extent permitted by law any right to which it may be entitled to under Articles 2830, 2836, 2842, 2845, 2846, 2848 and 2849 of the Mexican Federal Civil Code and related Articles contained in the Civil Codes of the States in Mexico. The Guarantors further expressly waive the benefits of order, excusión y division contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2837, 2838, 2840, 2841 and other related Articles of the Mexican Federal Civil Code and related Articles contained in other Civil Codes of the States of Mexico. The Guarantors hereby represent that the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant each such provision of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject each such civil code are known in form and substance to Section 4.4, the defense of payment of the applicable amounts)each such Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Cemex Sa De Cv)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(a) The obligations of the Guarantor under this guarantee shall not be subject to any right to require any Secured Party to proceed against prior notice to, demand upon or action against, the Borrower, the Project Company or to any other Person prior notice to the Guarantor with regard to any default by the Borrower or to proceed against the Project Company, and shall not be discharged, released, affected or exhaust any security held impaired by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacityact, lack of power or authorityomission, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind circumstance (other than any notice expressly contemplated herein complete payment of the Guaranteed Obligations by the Project Company or in the Note Purchase AgreementBorrower or of the Maximum Amount by the Guarantor), creation matter or incurring of thing which, but for this provision, would reduce, release or prejudice any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor obligations of the foregoing Guarantor under this Agreement or on the part of any other Person under any Credit Document;
(d) any which might otherwise constitute a legal or equitable discharge or defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of or a guarantor, including the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;following:
(i) any duty on the part extension of any Secured Party to disclose time, forbearance or concession given to the Contributor any facts such Secured Party may now or hereafter know about Borrower, the Project Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assumeother party, or have reason to believe that such facts are unknown to any increase, decrease, change in the Contributormanner, time or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed place of payment or calculation or other alteration of the financial condition of the Company and Pledgor)Guaranteed Obligations or any part thereof;
(jii) any defense based on any change in the time, manner or place of any payment underassertion of, or failure to assert, or delay in asserting, or lack of diligence regarding, any other term ofright, power or remedy against the Borrower, the Credit Documents Project Company or any other party or in respect of any security for the IFC Loan or the FMO Loan;
(iii) any taking, holding, reviewing, exchanging, varying, releasing, waiving or omitting to take, perfect or enforce any rights, remedies or securities against or granted by the Borrower, the Project Company or any other person;
(iv) any amendment, change, acceleration, renewal, extensionmodification, accelerationwaiver, compromise surrender, compromise, settlement, release, termination or waiver amplification of the provisions of the Loan Agreements, any other Transaction Document, or any consent to departure from the terms other agreement between or among any of the Credit Documents (Borrower, the Project Company, the Guarantor, FMO, IFC or any other than this Agreement)party in relation to the IFC Loan or the FMO Loan;
(kv) any defense based upon any borrowing or grant of a security interest under Section 364 failure of the Bankruptcy Code Borrower, the Project Company or the Guarantor to comply with any requirement of any law, regulation or order;
(vi) the dissolution, liquidation, winding-up, amalgamation, merger, reorganization or other alteration of the United States; andlegal status or structure of the Borrower, the Project Company, the Guarantor or any other person;
(lvii) any purported or actual assignment of the IFC Loan or the FMO Loan by IFC or FMO, respectively, to any other party;
(viii) any invalidity or unenforceability of, or any defect in or omission from, the Loan Agreements, any other Transaction Document or any other agreement relating to the IFC Loan or the FMO Loan, or any of their respective provisions; or
(ix) any other circumstance howsoever caused or arising and whether or not similar to any of the foregoing (including any statute other than payment in full of limitationsthe Guaranteed Obligations by the Borrower or the Project Company or of the Maximum Amount by the Guarantor) or any existence of or reliance on any representation by any Secured Party that which might otherwise constitute a legal or equitable discharge or defense available to, of a surety or discharge of, a guarantor.
(b) The Guarantor further waives irrevocably and unconditionally any guarantor or surety (other than setoff against right to which it may be entitled to have the Contributor or, subject to Section 4.4assets of the Borrower, the defense of Project Company or any other guarantor first be used as payment of the applicable amounts)Guaranteed Obligations, prior to any amount being claimed from or paid by the Guarantor hereunder.
Appears in 1 contract
Samples: Sponsor Guarantee Agreement (Genesee & Wyoming Inc)
Waiver of Defenses. The Contributor hereby obligations of the Borrowers and Guarantors under this Agreement will not be affected by, and each Borrower, on behalf of itself and each Guarantor, irrevocably waives, any defense it might have by virtue of, any act, omission, matter or thing which, but for this Section 2.10, would reduce, release or prejudice any of its obligations under this Agreement (whether or not known to it or any Finance Party). This includes: (i) any time, forbearance, extension or waiver granted to, or composition or compromise with, another person; (ii) any taking, variation, compromise, exchange, renewal or release of, or any refusal or failure to perfect or enforce, any rights against, or security over assets of, any person; (iii) any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any security; (iv) any disability, incapacity or lack of powers, authority or legal personality of or dissolution or change in the members or status of any Person; (v) any amendment, restatement or novation (however fundamental) of a Loan Document or any other document, guaranty or security; (vi) any unenforceability, illegality or invalidity of any obligation of any Person under any Loan Document or any other document, guaranty or security, the intent of the parties being that the Agent’s security interest in the Collateral and the Borrowers’ and Guarantors’ obligations under this Agreement are to remain in full force and be construed accordingly, as if there were no unenforceability, illegality or invalidity; (vii) any avoidance, postponement, discharge, reduction, non provability or other similar circumstance affecting any obligation of any Loan Party under a Loan Document resulting from any bankruptcy, insolvency, receivership, liquidation or dissolution proceedings or from any law, regulation or order so that each such obligation is for the purposes of the Borrowers’ and Guarantors’ obligations under this Agreement construed as if there were no such circumstance; or (viii) the acceptance or taking of other guaranties or security for the Obligations, or the settlement, release or substitution of any guaranty or security or of any endorser, guarantor or other obligor in respect of the Obligations. Each Borrower unconditionally and irrevocably waives waives, on behalf of itself and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
each Guarantor: (aw) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demanddiligence, presentment, protest and demand for performance, notice of any kind (other than any non-performance, protest, notice expressly contemplated herein or in of protest, notice of dishonor, notice of the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the CompanyLoan Parties to Lender, Pledgor or any Secured Partynotice of acceptance of this Agreement, any endorser or creditor of the foregoing or on the part and notices of any other Person kind whatsoever; (x) the filing of any claim with any court in the event of a receivership, insolvency or bankruptcy; (y) the benefit of any statute of limitations affecting any Loan Party’s obligations under any Credit Document;
the Loan Documents or the Borrowers’ or Guarantors’ obligations under this Agreement or the enforcement of this Agreement or Agent’s security interest in the Collateral; and (dz) any defense based upon an election of remedies by the Secured Partiesoffset or counterclaim or other right, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursementdefense, or both;
(e) claim based on, or in the nature of, any defense based on any offset against any amounts which may be obligation now or later owed to the Borrowers or Guarantors by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Loan Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Finance Party.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental RulesApplicable Law, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Credit Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Credit Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Credit Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Credit Parties pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Credit Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Credit Parties or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Credit party or the Contributor, the right rights of the Contributor a Credit Party to proceed against the Company, Pledgor or another Person other Credit Parties for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsParties;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor any Credit Party any facts such Secured Party Agent or any Lender may now or hereafter know about a Credit Party or the Company or PledgorCollateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor such Credit Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, such Credit Party or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging any Credit Party, it being understood and agreed that it each Credit Party is fully responsible for being and keeping informed of the financial condition of the Company other Credit Parties, of the condition of the Collateral Property or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Credit Parties hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation or other provision contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Credit Party or any other circumstance Person of any Collateral, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any lack of commercial reasonableness in dealing with the Collateral;
(o) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(p) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Credit Parties) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Credit Party or the Collateral owned by it;
(q) Any modifications of the Loan Documents or any obligation of Credit Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(r) Any release of a Credit Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(s) Any action, occurrence, event or matter consented to by the under any provision hereof, or otherwise;
(t) The dissolution or termination of existence of any Credit Party;
(u) Either with or reliance on without notice to the Credit Parties, any representation renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(v) Any defense of the Credit Parties, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations; or
(w) To the fullest extent permitted by law, any Secured other legal, equitable or surety defenses whatsoever to which any Credit Party that might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of each Credit Party hereunder are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(a) any right to require any Secured Party to proceed against the Company any Obligor or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of any Obligor, the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any Obligor, the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice notices expressly contemplated herein or in required to be delivered to the Note Purchase AgreementContributor hereunder), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Obligor, the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Financing Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against any Obligor, the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, any Obligor or the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of any Obligor, the Company, Pledgor or the Contributor or the failure by any Obligor, the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Financing Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by any Obligor, the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Financing Documents based on or related to the bankruptcy or insolvency of any Obligor or the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about any Obligor or the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of each Obligor and the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Financing Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Credit Financing Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the U.S. Bankruptcy Code of the United StatesCode; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.45.4, the defense of payment of the applicable amounts).
Appears in 1 contract
Samples: Equity Contribution Agreement (Midamerican Energy Holdings Co /New/)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Loan Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Loan Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Loan Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to the Loan Parties pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Loan Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Borrower or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by judicial or non-judicial rather than judicial foreclosureforeclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Loan Party or the Contributor, the right rights of the Contributor a Loan Party to proceed against the Company, Pledgor or another Person other Loan Parties for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsLoan Parties;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Loan Parties any facts such Secured Party Agent or any Lender may now or hereafter know about the Company Loan Parties or Pledgorthe Collateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Loan Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Loan Parties or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Loan Parties, it being understood and agreed that it each Loan Party is fully responsible for being and keeping informed of the financial condition of the Company other Loan Parties, of the condition of the Collateral Properties or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Loan Parties hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation made by or on behalf of any Loan Party contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Loan Party or any other circumstance Person of any Collateral, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(o) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Loan Parties) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Loan Party or the Collateral owned by it;
(p) Any modifications of the Loan Documents or any obligation of the Loan Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(q) Any release of a Loan Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(r) Any action, occurrence, event or matter consented to by the Loan Parties under any provision hereof, or otherwise;
(s) The dissolution or termination of existence of any Loan Party;
(t) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or reliance on another changes in the Obligations, including but not limited to any representation material alteration of the terms of payment or performance of the Obligations;
(u) Any defense of the Loan Parties, other than that of prior performance, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations;
(v) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which the Loan Parties might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Loan Parties hereunder and under the other Loan Documents are absolute, unconditional and irrevocable; or
(w) Subject to compliance with the provisions of this Agreement, any guarantor lack of notice of disposition or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense manner of payment disposition of the applicable amounts)any Collateral except for notices required by law.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental RulesApplicable Law, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Credit Parties hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Credit Parties or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Credit Party hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Credit Parties pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Credit Party, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Credit Parties or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Credit party or the Contributor, the right rights of the Contributor a Credit Party to proceed against the Company, Pledgor or another Person other Credit Parties for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsParties;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor any Credit Party any facts such Secured Party Agent or any Lender may now or hereafter know about a Credit Party or the Company or PledgorCollateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor such Credit Party intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, such Credit Party or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging any Credit Party, it being understood and agreed that it each Credit Party is fully responsible for being and keeping informed of the financial condition of the Company other Credit Parties, of the condition of the Real Estate or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Credit Parties hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation or other provision contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) Subject to compliance with the provisions of this Agreement, any sale or assignment by a Credit Party or any other circumstance Person of any Collateral, or any portion thereof or interest therein, not consented to by Agent or any Lender;
(including m) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(n) Any lack of commercial reasonableness in dealing with the Collateral;
(o) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(p) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Credit Parties) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Credit Party or the Collateral owned by it;
(q) Any modifications of the Loan Documents or any obligation of Credit Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(r) Any release of a Credit Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(s) Any action, occurrence, event or matter consented to by the under any provision hereof, or otherwise;
(t) The dissolution or termination of existence of any Credit Party;
(u) Either with or reliance on without notice to the Credit Parties, any representation renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(v) Any defense of the Credit Parties, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations; or
(w) To the fullest extent permitted by law, any Secured other legal, equitable or surety defenses whatsoever to which any Credit Party that might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of each Credit Party hereunder are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes(a) Subject to Section 2.1(c), to the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
the Pledgor hereby waives: (a) any right to require any Secured Party to proceed against the Company or any other Person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
(bi) any defense that may arise by reason of a statute of limitations; (ii) any defense based on the legal disability of any Person or any discharge or limitation of the incapacity, lack liability of power or authority, death, dissolution, merger, termination or disability of any Person to the Company, Pledgor or any other Person Collateral Agent or the failure Secured Parties, whether consensual or arising by operation of any Secured Party to file or enforce a claim against the estate law; (in administrationiii) presentment, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice as expressly contemplated herein or in provided by the Note Purchase AgreementLoan Documents), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
; and (div) any defense based upon an election or arising out of remedies any defense which any Person may have to the payment or performance of any part of the Secured Obligations (other than the defense of payment).
(b) Subject to Section 2.1(c), the Pledgor hereby waives, to the maximum extent permitted by applicable law, (i) all rights under any law to require the Collateral Agent to pursue the Borrower or any other Person (including the Pledgor under any other obligation of the Pledgor), any security which the Collateral Agent may hold, or any other remedy before proceeding against the Pledgor; (ii) all rights of reimbursement or subrogation, all rights to enforce any remedy that the Collateral Agent or the Secured Parties may have against any Person, and all rights to participate in any security held by the Secured PartiesCollateral Agent, including an election in each case until the Termination Date; (iii) all rights to proceed by non-judicial rather than judicial foreclosurerequire the Collateral Agent to give any notices of any kind, which destroys including, without limitation, notices of acceptance, nonpayment, nonperformance, protest, dishonor, default, delinquency or otherwise impairs acceleration, or to make any presentments, demands or protests, except as set forth herein or expressly provided in the subrogation rights Credit Agreement or any of the Contributor, Loan Documents; (iv) all rights to assert the right bankruptcy or insolvency of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person as a defense hereunder or as the basis for rescission hereof; (v) all rights under any law purporting to reduce the ContributorPledgor’s obligations hereunder if the Secured Obligations are reduced other than as a result of payment in Cash of such Secured Obligations including, the Company or Pledgor or for without limitation, any reason whatsoever;
(f) any defense reduction based upon any Governmental Rule which provides Secured Party’s error or omission in the administration of the Secured Obligations; (vi) all defenses based on the incapacity, disability or lack of authority of the Borrower or any other Person, the repudiation of the Loan Documents, the Specified Hedging Agreements or the Specified Cash Management Agreements by the Borrower or any Person, the failure by the Collateral Agent or the Secured Parties to enforce any claim against any Person, or the unenforceability in whole or in part of any Loan Documents, the Specified Hedging Agreements or the Specified Cash Management Agreements; (vii) all suretyship and guarantor’s defenses generally including, without limitation, defenses based upon collateral impairment or any statute or rule of law providing that the obligation of a surety or guarantor must not exceed or be neither larger in amount nor in other respects more burdensome than that of the principal;
; (gviii) all rights to insist upon, plead or in any manner whatever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, marshaling of assets, redemption or similar law, or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance by the Pledgor of its obligations under, or the enforcement by the Collateral Agent of, this Agreement; (ix) any defense based on any failure to act, delay or omission whatsoever requirement on the part of the Company, Pledgor Collateral Agent or the Contributor holder of any obligations under the Loan Documents, the Specified Hedging Agreements or the failure Specified Cash Management Agreements to mitigate the damages resulting from any default; and (x) except as otherwise specifically set forth herein or as required by applicable law, all rights of notice and hearing of any kind prior to the exercise of rights by the Company, Pledgor or Collateral Agent upon the Contributor occurrence and during the continuation of an Event of Default to do any act or thing repossess with judicial process or to observe replevy, attach or perform levy upon the Pledged Collateral. To the extent permitted by law, the Pledgor waives the posting of any covenantbond otherwise required of the Collateral Agent in connection with any judicial process or proceeding to obtain possession of, condition replevy, attach, or agreement levy upon the Pledged Collateral, to be observed enforce any judgment or performed other security for the Secured Obligations, to enforce any judgment or other court order entered in favor of the Collateral Agent, or to enforce by it under the Credit Documents;
(h) any defensespecific performance, setoff temporary restraining order, preliminary or counterclaim which may at any time be available to or asserted by the Companypermanent injunction, Pledgor or the Contributor against any Secured Party this Agreement or any other agreement or document between the Pledgor, the Collateral Agent and the Secured Parties. The Pledgor further agrees that upon the occurrence and during the continuation of an Event of Default, the Collateral Agent may elect to nonjudicially or judicially foreclose against any real or personal property security it holds for the Secured Obligations or any part thereof, or to exercise any other remedy against any Person, any security or any guarantor, even if the effect of that action is to deprive the Pledgor of 20 the right to collect reimbursement from any Person under for any sums paid by the Credit Documents based on or related Pledgor to the bankruptcy Collateral Agent or insolvency any Secured Party.
(c) If the Collateral Agent may, under applicable law, proceed to realize its benefits under any of the Company Loan Documents giving the Collateral Agent a Lien upon any Collateral, whether owned by the Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, the Collateral Agent may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of the rights and remedies of the Collateral Agent under this Agreement. If, in the exercise of any of such rights and remedies, the Collateral Agent shall forfeit any of its rights or remedies, including any right to enter a deficiency judgment against the Borrower or any other Person, whether because of any applicable laws pertaining to “election of remedies” or the like, to the extent permitted by applicable law, the Pledgor hereby consents to such action by the Collateral Agent and waives any claim based upon such action, even if such action by the Collateral Agent shall result in a full or partial loss of any rights of subrogation, indemnification or reimbursement which the Pledgor might otherwise have had but for such action by the Collateral Agent or the terms herein. Any election of remedies which results in the denial or impairment of the right of the Collateral Agent to seek a deficiency judgment against any of the parties to any of the Loan Documents shall not, to the extent permitted by applicable law, impair the Pledgor;’s obligation hereunder. In the event the Collateral Agent shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, the Collateral Agent may bid all or less than the amount of the Secured Obligations.
(id) To the extent permitted by applicable law, the Pledgor shall not assert and hereby waives any duty claim against any Indemnitee, on the part any theory of any Secured Party liability, for special, indirect, consequential or punitive damages (as opposed to disclose to the Contributor any facts such Secured Party may now direct or hereafter know about the Company or Pledgoractual damages) arising out of, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assumein connection with, or have reason to believe that such facts are unknown to the Contributoras a result of, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term ofthis Agreement, the Credit Documents Agreement or any other amendmentagreement or instrument contemplated hereby or thereby, renewalthe Transactions, extension, acceleration, compromise any Loan or waiver Letter of Credit or any consent to departure from the terms use of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)proceeds thereof.
Appears in 1 contract
Waiver of Defenses. The Contributor Each of the Borrowers hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party Agent or the Lenders to proceed against the Company other Borrowers or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or the Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Borrower hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations or the Hedge Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to Borrowers pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Borrower, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Borrowers or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Borrower or the Contributor, the right rights of the Contributor a Borrower to proceed against the Company, Pledgor or another Person other Borrowers for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsBorrowers;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Borrowers any facts such Secured Party Agent or any Lender may now or hereafter know about Borrowers or the Company or PledgorCollateral, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Borrower intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Borrowers or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Borrowers, it being understood and agreed that it each Borrower is fully responsible for being and keeping informed of the financial condition of the Company other Borrowers, of the condition of the Mortgaged Property or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by Borrowers hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, Any lack of notice of disposition or of manner or place of disposition of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Collateral;
(k) Any inaccuracy of any defense based upon representation or other provision contained in any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; andLoan Document;
(l) Any sale or assignment of the Loan Documents, or any interest therein;
(m) Any sale or assignment by a Borrower or any other circumstance Person of any Collateral, or any portion thereof or interest therein, whether or not consented to by Agent or any Lender;
(including n) Any invalidity, irregularity or unenforceability, in whole or in part, of any statute one or more of limitationsthe Loan Documents;
(o) Any lack of commercial reasonableness in dealing with the Collateral;
(p) Any deficiencies in the Collateral or any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(q) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other Borrowers) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Borrower or the Collateral owned by it;
(r) Any modifications of the Loan Documents or any Derivatives Contract giving rise to the Hedge Obligations or any obligation of Borrowers relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(s) Any release of a Borrower or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or the Lenders’ voluntary act or otherwise;
(t) Any action, occurrence, event or matter consented to by Borrowers under any provision hereof, or otherwise;
(u) The dissolution or termination of existence of any Borrower;
(v) Either with or reliance on without notice to Borrowers, any representation renewal, extension, modification, amendment or another changes in the Obligations or the Hedge Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations or the Hedge Obligations;
(w) Any defense of Borrowers, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations or the Hedge Obligations; or
(x) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which Borrowers might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Borrowers hereunder are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally Company waives any and irrevocably all notice of the creation, renewal, extension or accrual of any of the Obligations (as defined in the Loan Agreement) and notice of or proof of reliance by Bear Xxxxxxx upon this Agreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between BlueStar or the Company, on the one hand, and Bear Xxxxxxx, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. The Company waives diligence, presentment, protest, demand for payment and relinquishes, notice of default or nonpayment to or upon BlueStar or the Company with respect to the maximum extent permitted by applicable Governmental RulesObligations. This Agreement shall be construed as a continuing, all rights or remedies accorded by applicable Governmental Rules absolute and unconditional obligation of the Company without regard to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
(a) the validity, regularity or enforceability of the Loan Agreement, any right to require other Loan Document, any Secured Party to proceed against of the Company Obligations or any other Person collateral security therefor or to proceed against guarantee or exhaust any security held by any Secured Party right of offset with respect thereto at any time or from time to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
time held by Bear Xxxxxxx, (b) any defense that may arise by reason of the incapacitydefense, lack of power set-off or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind counterclaim (other than any notice expressly contemplated herein a defense of payment or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
(dperformance) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) any defense, setoff or counterclaim which may at any time be available to or be asserted by BlueStar against Bear Xxxxxxx, or (c) any other circumstance whatsoever (with or without notice to or knowledge of BlueStar or the Company) which constitutes, or might be construed to constitute, an equitable or legal discharge of BlueStar for the Obligations, or of the Company under this Agreement, in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against the Company, Pledgor or the Contributor Bear Xxxxxxx shall be under no obligation to pursue such rights and remedies as it may have against any Secured Party BlueStar or any other Person under or against any collateral security or guarantee for the Credit Documents based on Obligations or related any right of offset with respect thereto, and any failure by Bear Xxxxxxx to pursue such other rights or remedies or to collect any payments from BlueStar or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of BlueStar or any such other Person or of any such collateral security, guarantee or right of offset, shall not relieve the Company of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Bear Xxxxxxx against the Company. This Agreement shall remain in full force and effect and be binding in accordance with and to the bankruptcy or insolvency extent of its terms upon the Company and its successors and assigns thereof, and shall inure to the benefit of Bear Xxxxxxx, and its successors, indorsees, transferees and assigns, until all the obligations of the Company or Pledgor;
(i) any under this Agreement shall have been satisfied in full. Bear Xxxxxxx shall have no duty on the part of any Secured Party to disclose care to the Contributor any facts such Secured Party may now Company with respect to the administration of the Loans, the Loan Agreement or hereafter know about the other Loan Documents and the Company or Pledgorexpressly waives any defense to its obligations hereunder arising from any course of conduct as between Bear Xxxxxxx and BlueStar, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition ability of the Company and Pledgor);
(j) any defense based on any change in to collect the time, manner or place Loans is impaired by such course of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)conduct.
Appears in 1 contract
Samples: Put/Call Option Agreement (Covad Communications Group Inc)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Borrowers hereby waives and agrees not to assert or take advantage of any such right or remedies, including:defense based upon: NYDOCS03/1056463.7
(a) any Any right to require any Secured Party Agent or Lenders to proceed against the Company other Borrowers or any other Person or to proceed against or exhaust any security held by any Secured Party Agent or Lenders at any time or to pursue any other remedy in Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce the provisions of this Agreementa Borrower hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of Agent or any Lender to ascertain the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentmentpresentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to the Borrowers pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Companyany Borrower, Pledgor or Agent, any Secured PartyLender, any endorser or creditor of the foregoing Borrowers or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of a Borrower or the Contributor, the right rights of the Contributor a Borrower to proceed against the Company, Pledgor or another Person other Borrowers for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsBorrowers;
(h) any defenseAny principle or provision of law, setoff statutory or counterclaim otherwise, which may at any time is or might be available to or asserted by in conflict with the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency terms and provisions of the Company or Pledgorthis Agreement;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Borrowers any facts such Secured Party Agent or any Lender may now or hereafter know about the Company or PledgorLoan Parties, regardless of whether such Secured Party Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor each Borrower intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Borrowers or have has a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging Borrowers, it being understood and agreed that it each Borrower is fully responsible for being and keeping informed of the financial condition of the Company other Loan Parties and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Borrowers hereunder and under the other Loan Documents;
(j) any defense based on any change in the time, manner or place Any inaccuracy of any payment under, representation made by or on behalf of any Loan Party contained in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)Loan Document;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon any borrowing sale or grant of a security interest under Section 364 assignment of the Bankruptcy Code of the United States; andLoan Documents, or any interest therein;
(l) [Reserved];
(a) NYDOCS03/1056463.7
(m) Any invalidity, irregularity or unenforceability, in whole or in part, of any one or more of the Loan Documents;
(n) Any deficiency in the ability of Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation guaranteed under the Loan Documents;
(o) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the other circumstance (including any statute of limitationsBorrowers) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Agent or any Lender to enforce any of its rights, whether now or hereafter required, which Agent or any Lender may have against a Loan Party;
(p) Any modifications of the Loan Documents or any obligation of the Loan Parties relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(q) Any release of a Loan Party or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, Agent’s or Lenders’ voluntary act or otherwise;
(r) Any action, occurrence, event or matter consented to by the Loan Parties under any provision hereof, or otherwise;
(s) The dissolution or termination of existence of any Loan Party;
(t) Subject to compliance with the provisions of this Agreement, any renewal, extension, modification, amendment or reliance on another changes in the Obligations, including but not limited to any representation material alteration of the terms of payment or performance of the Obligations;
(u) Any defense of the Loan Parties, other than that of prior performance, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations; or
(v) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which the Loan Parties might otherwise constitute a defense available tobe entitled, or discharge ofit being the intention that the obligations of Loan Parties hereunder and under the other Loan Documents are absolute, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)unconditional and irrevocable.
Appears in 1 contract
Waiver of Defenses. The Contributor Sponsor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental RulesLaws, all rights or and remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right rights or remedies, including:
(a) any right to require any the Administrative Agent or the Senior Secured Party Parties to proceed against the Company any Borrower, any guarantor or any other Person or to proceed against or exhaust any security or collateral held by the Collateral Agent or any other Senior Secured Party at any time or to pursue any other remedy in the Administrative Agent's or any other Senior Secured Party’s 's power before proceeding against the Contributor to enforce the provisions of this AgreementSponsor;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the CompanySponsor, Pledgor any guarantor, any Borrower, or any other Person or the failure of the Administrative Agent or any other Senior Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the CompanySponsor, Pledgor any guarantor, any Borrower, or any other Person;
(c) promptness, diligence, demand, presentment, protest and notice of any kind (other than any notices required hereby), including notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Borrower, the CompanyAdministrative Agent, Pledgor or any the Senior Secured PartyParties, any endorser or creditor of the foregoing foregoing, any guarantor or on the part of any other Person under this or any Credit other instrument in connection with any obligation or evidence of indebtedness held by the Administrative Agent or the Senior Secured Parties as collateral or in connection with any amounts due under this Agreement or any other Financing Document;
(d) any defense based upon an any judicial or nonjudicial foreclosure or sale of, or other election of remedies by with respect to, any interest in real property or other Collateral serving as security for all or any part of the Secured Partiesamounts due under any Financing Document, including an election to proceed by non-judicial rather than judicial even though such foreclosure, which destroys sale or otherwise impairs election of remedies may impair the subrogation rights of the Contributor, Sponsor or may preclude the right of the Contributor to proceed against the Company, Pledgor or another Person for Sponsor from obtaining reimbursement, contribution, indemnification or bothother recovery from any Borrower or any other Person and even though the Sponsor may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or Sponsor for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any act, failure to act, delay or omission whatsoever on the part of any Borrower or any of the Company, Pledgor or the Contributor Affiliates of any Borrower or the failure by any Borrower or any of the Company, Pledgor or the Contributor Affiliates of any Borrower to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under any Financing Document;
(g) any defense based upon any statute or rule of law which provides that the Credit Documentsobligation of a surety or guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal;
(h) any defense, defense of setoff or counterclaim which may at any time be available to or asserted by any Borrower or any of the CompanyAffiliates of any Borrower against the Administrative Agent, Pledgor or the Contributor against any Senior Secured Party Parties or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgorany Financing Document;
(i) any duty on the part of the Administrative Agent or any Senior Secured Party to disclose to the Contributor Sponsor any facts such any Senior Secured Party may now or hereafter know about any Borrower or any of the Company or PledgorGreenfield Plants, regardless of whether such the Administrative Agent or any Senior Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor Sponsor intends to assume, or have reason to believe that such facts are unknown to the ContributorSponsor, or have a reasonable opportunity to communicate such facts to the Contributor (Sponsor, since the Contributor acknowledging Sponsor acknowledges that it the Sponsor is fully responsible for being and keeping informed of the financial condition of all Borrowers and the Company Greenfield Plants and Pledgor)of all circumstances bearing on the risk of non-payment of any amounts due or non-performance of any obligations under this Agreement or any other Financing Document;
(j) any defense based on any change in the time, manner or place of any payment or performance under, or in any other term of, the Credit Documents any Financing Document, or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Credit Documents (other than this Agreement)any Financing Document;
(k) any defense based upon arising by reason of any borrowing bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the amounts due under this Agreement or any other Financing Document (or any interest on all or any part of the amounts due under this Agreement or any other Financing Document) in or as a result of any such proceeding, any failure of the Administrative Agent to file a claim in any such proceeding, or the occurrence of any of the following: (i) the election by the Administrative Agent, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the Bankruptcy Code, (ii) any extension of credit or the grant of a security interest any lien or encumbrance under Section 364 of the Bankruptcy Code Code, (iii) any use of cash collateral under Section 363 of the United StatesBankruptcy Code, or (iv) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person; and
(l) any other circumstance (including any statute of limitations) ), any act or omission by any Borrower or any existence of or reliance on any representation by the Administrative Agent, any Borrower, or any Senior Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety surety, defense of payment or performance of the applicable amounts due under this Agreement or any other Financing Document) (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of that the applicable amountsSponsor has performed its obligations hereunder or that the underlying obligation has been performed).
Appears in 1 contract
Waiver of Defenses. The Contributor Sponsor hereby unconditionally and irrevocably waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, relinquishes all rights or and remedies accorded by applicable Governmental Rules law to sureties or guarantors and agrees not to assert or take advantage of any such right rights or remedies, including:
including (a) any right to require any either Collateral Agent or the other Secured Party Parties to proceed against the Company any Loan Party or any other Person or to proceed against or exhaust any security held by any either Collateral Agent or the other Secured Party Parties at any time or to pursue any other remedy in such Collateral Agent’s or any other Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
Sponsor, (b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor any Loan Party or any other Person or the failure of either Collateral Agent or any other Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor any Loan Party or any other Person;
, (c) demand, presentment, protest and notice of any kind (other than any kind, including notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Loan Party, Collateral Agent, the Company, Pledgor or any other Secured PartyParties, any endorser or creditor of the foregoing or on the part of any other Person under this or any Credit Document;
other instrument in connection with any obligation or evidence of indebtedness held by either Collateral Agent or the other Secured Parties as collateral or in connection with any Obligations, (d) any defense based upon an election of remedies by either Collateral Agent or the other Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the ContributorSponsor, the right of the Contributor Sponsor to proceed against the Company, Pledgor a Loan Party or another Person for reimbursement, or both;
, (e) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company or Pledgor or Sponsor for any reason whatsoever;
, (f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any act, failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or a Loan Party of the failure by the Company, Pledgor or the Contributor a Loan Party to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Financing Documents;
, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Loan Party against either Collateral Agent, the Company, Pledgor or the Contributor against any other Secured Party Parties or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
Financing Documents, (i) any duty on the part of either Collateral Agent or any other Secured Party to disclose to the Contributor Sponsor any facts such Collateral Agent or such other Secured Party may now or hereafter know about the Company or Pledgorany Loan Party, regardless of whether such Collateral Agent or such other Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor Sponsor intends to assume, or have reason to believe that such facts are unknown to the ContributorSponsor, or have a reasonable opportunity to communicate such facts to the Contributor (Sponsor, since the Contributor acknowledging Sponsor acknowledges that it the Sponsor is fully responsible for being and keeping informed of the financial condition of the Company Loan Parties and Pledgor);
of all circumstances bearing on the risk of non-payment of any obligations and liabilities hereby guaranteed, (j) the fact that any Loan Party may at any time in the future dispose of all or part of its direct or indirect interest in any other Loan Party, (k) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Financing Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Credit Documents Financing Documents, (l) any defense arising because of either Collateral Agent’s or any other than this Agreement);
Secured Party’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, and (km) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)Code.
Appears in 1 contract
Waiver of Defenses. The Contributor Guarantor hereby unconditionally and irrevocably waives and relinquishesrelinquishes as to the Credit Agreement Secured Parties (but not as against the Borrower following the Credit Agreement Discharge Date, subject to Section 6.17 (Term of Guaranty)), to the maximum extent permitted by applicable Governmental RulesLaws, all rights or and remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right rights or remedies, including:
(a) any right to require any the Administrative Agent or the other Credit Agreement Secured Party Parties to proceed against the Company Borrower, any guarantor or any other Person or to proceed against or exhaust any security or Collateral held by the Administrative Agent or any other Credit Agreement Secured Party at any time or to pursue any other remedy in the Administrative Agent’s or any other Credit Agreement Secured Party’s power before proceeding against the Contributor to enforce the provisions of this AgreementGuarantor;
(b) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the CompanyGuarantor, Pledgor any guarantor, the Borrower, or any other Person or the failure of the Administrative Agent or any other Credit Agreement Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the CompanyGuarantor, Pledgor any guarantor, the Borrower, or any other Person;
(c) promptness, diligence, demand, presentment, protest and notice of any kind (other than any kind, including notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the CompanyBorrower, Pledgor or any the Administrative Agent, the Credit Agreement Secured PartyParties, any endorser or creditor of the foregoing foregoing, any guarantor or on the part of any other Person under this or any other instrument in connection with any obligation or evidence of indebtedness held by the Administrative Agent or the Credit Agreement Secured Parties as collateral or in connection with any amounts due under this Agreement or any other Financing Document;
(d) any defense based upon an any judicial or nonjudicial foreclosure or sale of, or other election of remedies by with respect to, any interest in Collateral serving as security for all or any part of the Secured Partiesamounts due under any Financing Document, including an election to proceed by non-judicial rather than judicial even though such foreclosure, which destroys sale or otherwise impairs election of remedies may impair the subrogation rights of the Contributor, Guarantor or may preclude the right of the Contributor to proceed against the Company, Pledgor or another Person for Guarantor from obtaining reimbursement, contribution, indemnification or bothother recovery from the Borrower or any other Person and even though the Guarantor may not, as a result of such foreclosure, sale or election of remedies, be liable for any deficiency;
(e) any defense based on any offset against any amounts which that may be owed by any Person to the Contributor, the Company or Pledgor or Guarantor for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;
(g) any defense based on any act, failure to act, delay or omission whatsoever on the part of the Company, Pledgor Borrower or any Affiliates of the Contributor Borrower or the failure by the Company, Pledgor Borrower or any Affiliates of the Contributor Borrower to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under any Financing Document;
(g) any defense based upon any statute or rule of law that provides that the Credit Documentsobligation of a surety or guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal;
(h) any defense, defense of setoff or counterclaim which that may at any time be available to or asserted by the CompanyBorrower or any Affiliates of the Borrower against the Administrative Agent, Pledgor or the Contributor against any Credit Agreement Secured Party Parties or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgorany Financing Document;
(i) any duty on the part of the Administrative Agent or any Credit Agreement Secured Party to disclose to the Contributor Guarantor any facts such any Credit Agreement Secured Party may now or hereafter know about the Company Borrower or Pledgorthe Project, regardless of whether such the Administrative Agent or any Credit Agreement Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor Guarantor intends to assume, or have reason to believe that such facts are unknown to the ContributorGuarantor, or have a reasonable opportunity to communicate such facts to the Contributor (Guarantor, since the Contributor acknowledging Guarantor acknowledges that it the Guarantor is fully responsible for being and keeping informed of the financial condition of the Company Borrower and Pledgor)the Project and of all circumstances bearing on the risk of non-payment of any amounts due or non-performance of any obligations under this Agreement or any other Financing Document;
(j) any defense based on any change in the time, manner or place of any payment or performance under, or in any other term of, the Credit Documents any Financing Document, or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to or departure from the terms of the Credit Documents (other than this Agreement)any Financing Document;
(k) any defense based upon arising by reason of any borrowing bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the amounts due under this Agreement or any other Financing Document (or any interest on all or any part of the amounts due under this Agreement or any other Financing Document) in or as a result of any such proceeding, any failure of the Administrative Agent to file a claim in any such proceeding, or the occurrence of any of the following: (i) the election by the Administrative Agent, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the Bankruptcy Code, (ii) any extension of credit or the grant of a security interest any lien or encumbrance under Section 364 of the Bankruptcy Code Code, (iii) any use of cash collateral under Section 363 of the United StatesBankruptcy Code, or (iv) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person; and
(l) any other circumstance (including any statute of limitations) ), any act or omission by the Borrower or any existence of or reliance on any representation by the Administrative Agent, the Borrower, or any Credit Agreement Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety surety, defense of payment or performance of the applicable amounts due under this Agreement or any other Financing Document (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of that the applicable amountsGuarantor has performed its obligations hereunder or that the underlying obligation has been performed).
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally Guarantor agrees that the obligations, covenants and irrevocably agreements of Guarantor under this Guaranty shall not be affected or impaired by any act of Owner, or any event or condition except full performance of the Guaranteed Obligations. Guarantor agrees that, without full performance of the Guaranteed Obligations, the liability of Guarantor hereunder shall not be discharged, and Guarantor waives and relinquishes, to the maximum extent permitted by applicable Governmental Rules, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors and agrees not to assert or take advantage of any such right or remedies, including:
defense based on (a) any right to require any Secured Party to proceed against lack of authority or bankruptcy or insolvency of the Company Owner, Developer, Master Lessee or any other Person person or to proceed against or exhaust any security held by any Secured Party at any time or to pursue any other remedy in any Secured Party’s power before proceeding against the Contributor to enforce the provisions of this Agreement;
entity; (b) any defense that may arise by reason failure of Owner to commence action against the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor Developer or any other Person person or the failure of any Secured Party entity, or to file or enforce a claim against the estate (either in administration, bankruptcy bankruptcy, or any other proceeding) of the Company, Pledgor Developer or any other Person;
person or entity; (c) demandany election of remedies by the Owner or any other person or entity which destroys or otherwise impairs any subrogation rights of Guarantor or the right of Guarantor to proceed against Developer, presentment, protest and notice of Owner or any kind other person or entity for reimbursement; (other than d) any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action failure on the part of the CompanyOwner to ascertain the extent or nature of the liability of any person or entity liable for the obligations of Developer under the PFDA, Pledgor or any Secured Party, any endorser or creditor of the foregoing or failure on the part of Owner or any other Person person or entity to disclose to Guarantor any material facts affecting the obligations of Developer under any Credit Document;
(d) any defense based upon an election of remedies by the Secured Parties, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Contributor, the right of the Contributor to proceed against the Company, Pledgor or another Person for reimbursement, or both;
PFDA; (e) any defense based on any offset against any amounts which may be owed lack of acceptance or notice of acceptance of this Guaranty by any Person to the Contributor, the Company or Pledgor or for any reason whatsoever;
Owner; (f) any defense based upon any Governmental Rule which provides that lack of presentment, demand, protest, or notice of demand, protest, nonpayment or nonperformance with respect to the obligation obligations of a surety must be neither larger in amount nor in other respects more burdensome than that of Developer under the principal;
PFDA; (g) any defense based on lack of due diligence by Owner in obtaining reimbursement from any failure to act, delay person or omission whatsoever on entity now or hereafter liable for the part obligations of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it Developer under the Credit Documents;
PFDA; (h) any defense, setoff deficiency in the ability of Owner to collect from any persons or counterclaim which may at any entities now or hereafter liable for the obligations of Developer under the PFDA; (i) the renewal or extension of time be available to for the payment or asserted by performance of the Company, Pledgor or the Contributor against any Secured Party Guaranteed Obligations or any other Person under the Credit Documents based on or related agreement relating to the bankruptcy Guaranteed Obligations, whether made with or insolvency without the knowledge or consent of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
Guarantor; (j) any defense based on any change in transfer, waiver, compromise, settlement, surrender or release of the time, manner provisions of the PFDA (provided that the PFDA shall not be modified or place amended and no Change Order will be approved by Owner without the prior written consent of Guarantor); (k) the existence of any payment underdefenses to enforcement of the provisions of the PFDA other than mandatory counter-claims; (1) the existence of any set-off, claim, reduction or diminution of the Guaranteed Obligations, or in any other term ofdefense of any kind or nature, the Credit Documents which Guarantor may have against Developer, Owner or any other amendmentperson or entity or which any party has against Owner; (m) the addition of any and all other indorsers, renewalguarantors, extension, acceleration, compromise obligors and other persons liable for the payment and performance of the Guaranteed Obligations and the acceptance of any and all other security for the payment and performance of the Guaranteed Obligations; all whether or waiver of not Guarantor shall have had notice or knowledge or any consent act or omission referred to departure from in the terms foregoing clauses (a) through (m) of the Credit Documents (other than this Agreement);
(k) Paragraph. Guarantor intends that Guarantor shall remain liable hereunder as a principal until all Guaranteed Obligations shall have been satisfied in full, notwithstanding any defense based upon any borrowing fact, act, event or grant occurrence which might otherwise operate as a legal or equitable discharge of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) surety or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)guarantor.
Appears in 1 contract
Samples: Master Funding and Development Agreement (Adeptus Health Inc.)
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each of the Borrower and the Pledgor hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) any Any right to require any Secured Party the Agent or the Lenders to proceed against the Company other of the Borrower or the Pledgor or any other Person or to proceed against or exhaust any security held by any Secured Party the Agent or the Lenders at any time or to pursue any other remedy in the Agent’s or any Secured PartyLender’s power or under any other agreement before proceeding against the Contributor to enforce Borrower or the provisions of this AgreementPledgor hereunder or under any other Loan Document;
(b) The defense of the statute of limitations in any action hereunder or the payment or performance of any of the Obligations;
(c) Any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination death or disability of the Company, Pledgor or any other Person or Persons or the failure of the Agent or any Secured Party Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other PersonPerson or Persons;
(cd) demandAny failure on the part of the Agent or any Lender to ascertain the extent or nature of any Collateral or any insurance or other rights with respect thereto, presentmentor the liability of any party liable under the Loan Documents or the obligations evidenced or secured thereby;
(e) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and notice all other notices of any kind (other than except for such notices as are specifically required to be provided to the Borrower or the Pledgor pursuant to the Loan Documents), or the lack of any thereof, including, without limiting the generality of the foregoing, notice expressly contemplated herein or in of the Note Purchase Agreement)existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the CompanyBorrower, Pledgor or the Pledgor, the Agent, any Secured PartyLender, any endorser or creditor of the foregoing Borrower or the Pledgor or on the part of any other Person whomsoever under this or any Credit Documentother instrument in connection with any obligation or evidence of indebtedness held by the Agent or any Lender;
(df) any Any defense based upon an election of remedies by the Secured PartiesAgent or any Lender, including an any election to proceed by non-judicial rather than judicial foreclosureor nonjudicial foreclosure of any security, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of the Contributor, Borrower or the right Pledgor or the rights of the Contributor Borrower or the Pledgor to proceed against the Company, Pledgor or another Person other for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person Any right or claim of right to the Contributor, the Company or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule which provides that the obligation of cause a surety must be neither larger in amount nor in other respects more burdensome than that marshaling of the principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part assets of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit DocumentsBorrower;
(h) any defense, setoff or counterclaim which may at any time be available to or asserted by the Company, Pledgor or the Contributor against any Secured Party or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any Any duty on the part of Agent or any Secured Party Lender to disclose to the Contributor Borrower or the Pledgor any facts such Secured Party the Agent or any Lender may now or hereafter know about the Company Borrower or Pledgorthe Pledgor or the Collateral, regardless of whether such Secured Party the Agent or any Lender has reason to believe that any such facts materially increase the risk beyond that which the Contributor Borrower or the Pledgor intends to assume, assume or have has reason to believe that such facts are unknown to the Contributor, Borrower or have the Pledgor or has a reasonable opportunity to communicate such facts to the Contributor (Borrower, it being understood and agreed that the Contributor acknowledging that it is Borrower and the Pledgor are fully responsible for being and keeping informed of the financial condition of the Company other, of the condition of the Real Estate or the Collateral and Pledgor)of any and all circumstances bearing on the risk that liability may be incurred by the Borrower or the Pledgor hereunder and under the other Loan Documents;
(i) Any inaccuracy of any representation made by or on behalf of the Borrower or the Pledgor contained in any Loan Document;
(j) Subject to compliance with the provisions of this Agreement, any defense based on any change in sale or assignment of the time, manner or place of any payment underLoan Documents, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement)interest therein;
(k) Subject to compliance with the provisions of this Agreement, any defense based upon sale or assignment by the Borrower, the Pledgor or any borrowing other Person, of any Collateral, or grant of a security any portion thereof or interest under Section 364 of therein, not consented to by the Bankruptcy Code of the United States; andAgent or any Lender;
(l) Any invalidity, irregularity or unenforceability, in whole or in part, of any other circumstance one or more of the Loan Documents;
(including m) Any deficiencies in the Collateral or any statute deficiency in the ability of limitationsthe Agent or any Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligation hereby guaranteed;
(n) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of the Borrower or the Pledgor) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Agent or any Lender to enforce any of its rights, whether now or hereafter required, which the Agent or any Lender may have against the Borrower, the Pledgor or the Collateral owned by either of them;
(o) Any modifications of the Loan Documents or any obligation of the Borrower or the Pledgor relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Code, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(p) Any release of the Borrower, the Pledgor, or of any other Person from performance or observance of any of the agreements, covenants, terms or conditions contained in any of the Loan Documents by operation of law, the Agent’s or Lenders’ voluntary act or otherwise;
(q) Any action, occurrence, event or matter consented to by the Borrower or the Pledgor under any provision hereof, or otherwise;
(r) The dissolution or termination of existence of the Borrower or reliance on the Pledgor;
(s) Subject to compliance with the provisions of this Agreement, any representation renewal, extension, modification, amendment or another changes in the Obligations, including but not limited to any material alteration of the terms of payment or performance of the Obligations;
(t) Any defense of the Borrower or the Pledgor, other than that of prior performance, including without limitation, the invalidity, illegality or unenforceability of any of the Obligations;
(u) To the fullest extent permitted by law, any Secured Party that other legal, equitable or surety defenses whatsoever to which the Borrower or the Pledgor might otherwise constitute a defense available tobe entitled, it being the intention that the obligations of the Borrower or discharge ofthe Pledgor hereunder are absolute, unconditional and irrevocable; or
(v) Subject to compliance with the provisions of this Agreement, any guarantor lack of notice of disposition or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense manner of payment disposition of the applicable amounts)any Collateral except for notices required by law.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each Principal hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) the incapacity, lack of authority, death or disability of Tenant, any right to require any Secured Party to proceed against the Company other Principal, or any other Person person or entity;
(b) the failure of Landlord to commence an action against Tenant or any other Principal or any other person or entity or to proceed against or exhaust any security held by any Secured Party Landlord at any time or to pursue any other remedy in whatsoever at any Secured Party’s power before proceeding against time;
(c) any duty on the Contributor part of Landlord to enforce disclose to any Principal any facts it may now or hereafter know regarding Tenant, regardless of whether Landlord has reason to believe that any such facts materially increase the provisions risk beyond that which any Principal intends to assume or has reason to believe that such facts are unknown to any Principal, each Principal acknowledging that it is fully responsible for being and keeping informed of the financial condition and affairs of Tenant;
(d) lack of notice of default or demand for performance to Tenant, any other Principal, or any other party with respect to the Lease or the Retained Liabilities;
(e) the consideration for this Agreement;
(bf) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
(d) any defense based upon an election of remedies by the Secured PartiesLandlord, including an any election to proceed against any collateral of any kind or nature held by non-judicial rather than judicial foreclosureLandlord, which and whether or not any such election of remedies destroys or otherwise impairs the subrogation rights of the Contributor, Principals or the right rights of the Contributor Principals to proceed against the Company, Pledgor Tenant or another Person any other Principal for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company statute or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects aspects more burdensome than that of the a principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) Landlord’s election, in any defenseproceeding instituted under the Federal Bankruptcy Code, setoff or counterclaim which may at any time be available to or asserted by of the Company, Pledgor or application of Section 1111(b)(2) of the Contributor against any Secured Party Federal Bankruptcy Code or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)successor statute.
Appears in 1 contract
Waiver of Defenses. The Contributor hereby unconditionally and irrevocably waives and relinquishes, to To the maximum extent permitted by applicable Governmental Ruleslaw, all rights or remedies accorded by applicable Governmental Rules to sureties or guarantors each Principal hereby waives and agrees not to assert or take advantage of any such right or remedies, includingdefense based upon:
(a) the incapacity, lack of authority, death or disability of Tenant, any right to require any Secured Party to proceed against the Company other Principal, or any other Person person or entity;
(b) the failure of Landlord to commence an action against Tenant or any other Principal or any other person or entity or to proceed against or exhaust any security held by any Secured Party Landlord at any time or to pursue any other remedy in whatsoever at any Secured Party’s power before proceeding against time;
(c) any duty on the Contributor part of Landlord to enforce disclose to any Principal any facts it may now or hereafter know regarding Tenant, regardless of whether Landlord has reason to believe that any such facts materially increase the provisions risk beyond that which any Principal intends to assume or has reason to believe that such facts are unknown to any Principal, each Principal acknowledging that it is fully responsible for being and keeping informed of the financial condition and affairs of Tenant;
(d) lack of notice of default or demand for performance to Tenant, any other Principal, or any other party with respect to the Lease or the Retained Liabilities;
(e) the consideration for this Agreement;
(bf) any defense that may arise by reason of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of the Company, Pledgor or any other Person or the failure of any Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of the Company, Pledgor or any other Person;
(c) demand, presentment, protest and notice of any kind (other than any notice expressly contemplated herein or in the Note Purchase Agreement), creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Company, Pledgor or any Secured Party, any endorser or creditor of the foregoing or on the part of any other Person under any Credit Document;
(d) any defense based upon an election of remedies by the Secured PartiesLandlord, including an any election to proceed against any collateral of any kind or nature held by non-judicial rather than judicial foreclosureLandlord, which and whether or not any such election of remedies destroys or otherwise impairs the subrogation rights of the Contributor, Principals or the right rights of the Contributor Principals to proceed against the Company, Pledgor Tenant or another Person any other Principal for reimbursement, or both;
(eg) any defense based on any offset against any amounts which may be owed by any Person to the Contributor, the Company statute or Pledgor or for any reason whatsoever;
(f) any defense based upon any Governmental Rule rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects aspects more burdensome than that of the a principal;
(g) any defense based on any failure to act, delay or omission whatsoever on the part of the Company, Pledgor or the Contributor or the failure by the Company, Pledgor or the Contributor to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents;
(h) Landlord's election, in any defenseproceeding instituted under the Federal Bankruptcy Code, setoff or counterclaim which may at any time be available to or asserted by of the Company, Pledgor or application of Section 1111(b)(2) of the Contributor against any Secured Party Federal Bankruptcy Code or any other Person under the Credit Documents based on or related to the bankruptcy or insolvency of the Company or Pledgor;
(i) any duty on the part of any Secured Party to disclose to the Contributor any facts such Secured Party may now or hereafter know about the Company or Pledgor, regardless of whether such Secured Party has reason to believe that any such facts materially increase the risk beyond that which the Contributor intends to assume, or have reason to believe that such facts are unknown to the Contributor, or have a reasonable opportunity to communicate such facts to the Contributor (the Contributor acknowledging that it is fully responsible for being and keeping informed of the financial condition of the Company and Pledgor);
(j) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent to departure from the terms of the Credit Documents (other than this Agreement);
(k) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code of the United States; and
(l) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or discharge of, any guarantor or surety (other than setoff against the Contributor or, subject to Section 4.4, the defense of payment of the applicable amounts)successor statute.
Appears in 1 contract
