Waivers; Other Agreements. The Guaranteed Party is hereby authorized, without notice to or demand upon Guarantors, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time to: (i) waive or otherwise consent to noncompliance with any provision of the Note or Mortgage, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered to the Guaranteed Party; (ii) accept partial payments on the Guaranteed Obligations by Maker; (iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or release any such additional security or collateral; (iv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party may determine in its sole discretion; (v) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee therefore, in any manner; (vi) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker or any other guarantor as the Guaranteed Party may elect in its sole discretion; and (vii) apply any and all payments or recoveries from Maker, Guarantors or from any other guarantor of the Guaranteed Obligations, to such of the Guaranteed Obligations as the Guaranteed Party in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others.
Appears in 5 contracts
Samples: Contribution Agreement (Schottenstein Realty Trust, Inc.), Tax Protection Agreement (Schottenstein Realty Trust, Inc.), Tax Protection Agreement (Schottenstein Realty Trust, Inc.)
Waivers; Other Agreements. The Guaranteed Party is hereby authorized, without notice to or demand upon Guarantorsany Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors any Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time to:
(i) waive or otherwise consent to noncompliance with any provision of the Note or MortgageCredit Document, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker Borrower or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by MakerBorrower;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or release any such additional security or collateral;
(iv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party may determine in its sole discretion;
(v) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforetherefor, in any manner;
(vi) add, release or substitute any one or more other guarantors, makers borrowers or endorsers of the Guaranteed Obligations and otherwise deal with Maker Borrower or any other guarantor as the Guaranteed Party may elect in its sole discretion; and
(vii) apply any and all payments or recoveries from MakerBorrower, Guarantors any Guarantor or from any other guarantor of the Guaranteed Obligations, to such of the Guaranteed Obligations as the Guaranteed Party in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Hcp, Inc.), Limited Liability Company Agreement (Hcp, Inc.)
Waivers; Other Agreements. (a) The Guaranteed Party Agent is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including the Credit Agreement and the other Loan Documents) now or hereafter executed by the Borrower and delivered to the Agent, including, without limitation, any increase or decrease of the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Note or MortgageGuaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including the Credit Agreement and the other Loan Documents) now or hereafter executed by Maker or any other person the Borrower and delivered to the Guaranteed PartyAgent;
(iiiii) accept partial payments on the Guaranteed Obligations by MakerObligations;
(iiiiv) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this GuaranteeObligations, or for the payment of any other guarantees guaranties of the Guaranteed ObligationsObligations or other liabilities of the Borrower, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker the Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Borrower, Guarantors or from any other guarantor of the Guaranteed Obligationsguarantor, to such maker or endorser of the Guaranteed Obligations as or from the Guarantor to the Guaranteed Party Obligations to the Obligations in its sole discretion may determinesuch order as provided in subsection 2.06(b) of the Credit Agreement, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Agent as the Agent in its sole discretion, may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund at any time, at the Agent's sole discretion, any payment received by the Agent in respect of any Guaranteed Obligations, and payment to the Agent of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any release or termination of any collateral by virtue thereof) by the Agent, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any collateral so released or terminated shall be reinstated with respect to such obligations); even if any right of reimbursement or subrogation or other right or remedy of the Guarantor is extinguished, affected or impaired by any of the foregoing (including, without limitation, any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations which impairs any subrogation, reimbursement or other right of Guarantor).
(b) The Guarantor hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of the Guaranteed Obligations or of any promissory note or other document (including, without limitation, the Credit Agreement) evidencing all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations from the Borrower or any other guarantor or other action to enforce the same;
(iii) failure by the Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations or any other guaranty therefor;
(iv) the Agent's election, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(v) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code;
(vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the Agent's claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under Section 363 of the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of the Agent for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against Borrower, the Guarantor or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) failure by the Agent to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by the Agent that is authorized by this Guaranty;
(xiii) any election by the Agent under Section 9-501(4) of the Uniform Commercial Code as enacted in any relevant jurisdiction (the "Code") as to any security for the Guaranteed Obligations or any guaranty of the Guaranteed Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(c) The Guarantor hereby waives:
(i) any requirements of diligence or promptness on the part of the Agent;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations;
(iii) notices (A) of nonperformance, (B) of acceptance of this Guaranty, (C) of default in respect of the Guaranteed Obligations, (D) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to the Borrower or otherwise, (E) that the principal amount, or any portion thereof, and/or any interest on any instrument or document evidencing all or any part of the Guaranteed Obligations is due, (F) of any and all proceedings to collect from the Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (G) of exchange, sale, surrender or other handling of any security or collateral given to the Agent to secure payment of the Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Agent to (a) proceed first against the Borrower, or any other person whatsoever, (b) proceed against or exhaust any security given to or held by the Agent in connection with the Guaranteed Obligations, or (c) pursue any other remedy in the Agent's power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of the Borrower, (b) the cessation from any cause whatsoever of the liability of the Borrower, (c) any act or omission of the Agent or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of the Borrower or any security given to or held by the Agent in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Guaranteed Obligations or the Guarantor's liability hereunder or the enforcement hereof. In connection with the foregoing, the Guarantor covenants that this Guaranty shall not be discharged, except by complete performance of the obligations contained herein.
(d) The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, of any and all endorsers and/or other guarantors of any instrument or document evidencing all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations or any part thereof that diligent inquiry would reveal and the Guarantor hereby agrees that the Agent shall not have any duty to advise the Guarantor of information known to the Agent regarding such condition or any such circumstances.
(e) Notwithstanding anything to the contrary in this Guaranty, the Guarantor hereby irrevocably waives all rights which may have arisen in connection with this Guaranty to be subrogated to any of the rights (whether contractual, under the Bankruptcy Code, including Section 509 thereof, under common law or otherwise) of the Agent, the Lenders or the Issuing Banks against the Borrower or against any collateral security or guarantee or right of offset held by such Person for the payment of the Obligations. The Guarantor hereby further irrevocably waives all contractual, common law, statutory or other rights of reimbursement, contribution, exoneration or indemnity (or any similar right) from or against the Borrower or any other Person which may have arisen in connection with this Guaranty. So long as the Obligations remain outstanding, if any amount shall be paid by or on behalf of the Borrower to the Guarantor on account of any of the rights waived in this paragraph, such amount shall be held by the Guarantor in trust, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Agent in the exact form received by the Guarantor (duly indorsed by the Guarantor to the Agent, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Agent may determine. The provisions of this paragraph shall survive the term of this Guaranty and the payment in full of the Obligations and the termination of the commitments of the Lenders to extend credit under the Credit Agreement.
(f) The Guarantor hereby agrees that any indebtedness of the Borrower now or hereafter owing to the Guarantor is hereby subordinated to all of the Guaranteed Obligations, whether heretofore, now or hereafter created (the "Subordinated Debt"), and that without the prior consent of the Agent, the Subordinated Debt shall not be paid in whole or in part until the Guaranteed Obligations have been paid in full, the commitments of the Lenders to extend credit under the Credit Agreement have been terminated and the Credit Agreement has been terminated and is of no further force or effect, except that payments of principal and interest on the Subordinated Debt shall be permitted so long as no Potential Event of Default or Event of Default shall have occurred and be continuing to the extent such payments would not render the Borrower incapable of performing the Guaranteed Obligations. The Guarantor will not accept any payment of or on account of any Subordinated Debt at any time in contravention of the foregoing. At the request of the Agent, the Borrower shall pay to the Agent all or any part of the Subordinated Debt and any amount so paid to the Agent shall be applied to payment of the Guaranteed Obligations. Each payment on the Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by Guarantor as trustee for the Agent and shall be paid over to the Agent immediately on account of the Guaranteed Obligations, but without otherwise affecting in any manner the Guarantor's liability under any of the provisions of this Guaranty. The Guarantor agrees to file all claims against the Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of any Subordinated Debt, and the Agent shall be entitled to all of the Guarantor's right thereunder. If for any reason the Guarantor fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, the Agent, as the Guarantor's attorney-in-fact, is hereby authorized to do so in the Guarantor's name or, in the Agent's discretion, to assign such claim to and cause proof of claim to be filed in the name of the Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, the Guarantor hereby assigns to the Agent all Guarantor's rights to any payments or distributions to which the Guarantor otherwise would be entitled. If the amount so paid is greater than the Guarantor's liability hereunder, the Agent will pay the excess amount to the party entitled thereto. In addition, the Guarantor hereby appoints Agent as its attorney-in-fact to exercise all of the Guarantor's voting rights in connection with any bankruptcy proceeding or any plan for the reorganization of the Borrower.
(g) The Guarantor shall comply with all covenants applicable to it under the Credit Agreement and shall otherwise take no action which will cause an Event of Default or Potential Event of Default under the Credit Agreement. The Guarantor shall also cause the Borrower to comply with all covenants applicable to the Borrower under the Credit Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Anntaylor Inc), Guaranty (Anntaylor Inc)
Waivers; Other Agreements. The Guaranteed Party is (a) Agent and Lenders are hereby authorized, without notice to or demand upon GuarantorsPledgor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Pledgor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Obligations, or any portion thereof, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the Other Documents) now or hereafter executed by any Borrower and delivered to Agent or any Lender, including, without limitation, any increase or decrease of the principal amount thereof, the rate of interest thereon or fees payable in connection therewith;
(ii) waive or otherwise consent to noncompliance with any provision of any agreement, document or instrument (including, without limitation, the Note Loan Agreement and the Other Documents) evidencing or Mortgagein respect of the Obligations, or any part thereof, now or hereafter executed by any Borrower and delivered to Agent or any Lender;
(iii) accept partial payments on the Obligations;
(iv) receive, take and hold security or collateral for the payment or performance of the Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by Maker;
(iii) receive, take and hold additional security or collateral for the payment or performance of any guaranties of all or any part of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent and Lenders may determine in its their sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations Obligations, or any part thereof, or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations Obligations, or any other guarantee thereforepart thereof, or any guaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of all or any part of the Guaranteed Obligations and otherwise deal with Maker any Borrower, or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent and Lenders may elect in its their sole discretion; and;
(viiviii) apply any and all payments or recoveries from Maker, Guarantors any Borrower or from any other guarantor guarantor, maker or endorser of all or any part of the Guaranteed Obligations, to Obligations in such of the Guaranteed Obligations order as the Guaranteed Party Agent and Lenders in its their sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from any guarantor, maker or endorser of all or any part of the Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to Agent and Lenders as Agent and Lenders in their sole discretion may determine, whether or not such indebtedness or obligations relate to the Obligations; and
(x) refund at any time, at Agent’s and Lender’s sole discretion, any payment received by Agent or any Lender in respect of any Obligations, and, even though prior thereto this Agreement shall have been canceled or surrendered (or any lien, security interest or other collateral shall have been released or terminated by virtue thereof), such prior cancellation or surrender (or release or termination) shall not diminish, release, discharge, impair or otherwise affect the obligations of Pledgor hereunder in respect of the amount so refunded (and any lien, security interest or other collateral so released or terminated shall be reinstated with respect to such obligations), subject, in each case, to other limitations, if any, set forth herein.
(b) Pledgor hereby agrees that its obligations under this Agreement are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or guaranty of all or any part of the Obligations or of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the Other Documents) evidencing or in respect of all or any part of the Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for all or any part of the Obligations or any guaranty therefor;
(ii) the absence of any attempt to collect the Obligations, or any portion thereof, from any Borrower or any guarantor or other action to enforce the same;
(iii) any failure by Agent or any Lender to acquire, perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for all or any part of the Obligations or any guaranty therefor;
(iv) any election by Agent or Lenders in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. § 101 et seq.) (the “Bankruptcy Code”);
(v) any borrowing or grant of a security interest by any Borrower, as debtor-in-possession, or extension of credit, under the Bankruptcy Code;
(vi) the disallowance, under the Bankruptcy Code, of all or any portion of Agent’s or any Lender’s claim(s) for repayment of the Obligations;
(vii) any use of cash collateral under the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of Agent for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Borrower, Pledgor, or any guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting or accelerating, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) any failure by Agent or any Lender to file or enforce a claim against any Borrower or such Person’s estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by Agent that is authorized by this Agreement;
(xiii) any election by Agent under Section 9-604(a) of the Uniform Commercial Code as enacted in any relevant jurisdiction as to any security for the Obligations or any guaranty of all or any part of the Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment and performance in full of the Obligations and the termination of the Loan Agreement and all Other Documents).
(c) Until the Obligations have been paid and performed in full and the Loan Agreement and Other Documents have been terminated, Pledgor hereby irrevocably agrees that it will not assert, to the extent permitted by applicable law, any “claim” (as defined in Section 101(5) of the Bankruptcy Code) to which Pledgor is or would at any time be entitled by virtue of its obligations under this Agreement, including, without limitation, any right of subrogation (whether contractual, under Section 509 of the Bankruptcy Code or otherwise), reimbursement, contribution, exoneration or similar right against any Borrower, or by virtue of any other indebtedness or obligations of any Borrower to Pledgor now existing or hereafter incurred ; provided, however, that in any case under the Bankruptcy Code with respect to any Borrower, Pledgor may file a proof of contingent claim with respect to any such subrogation or other rights for the sole purpose of timely asserting such claims in compliance with any bar order (or standing order or local rule establishing a period of time for the timely filing of claims in such case), provided further that (i) Pledgor’s filing such proof of claim shall be without prejudice to Agent’s and Lenders’ rights under this Agreement and/or under Section 509 of the Bankruptcy Code and (ii) such proof of claim shall state that Pledgor’s claims memorialized thereby are subject to the provisions of this Agreement. Pledgor further waives, to the extent permitted by applicable law:
(i) any requirements of diligence or promptness on the part of Agent or Lenders;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Obligations or any guaranty with respect thereto;
(iii) notices (a) of nonperformance, (b) of acceptance of this Agreement, (c) of default in respect of the Obligations or any guaranty, (d) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to any Borrower or otherwise, (e) that the principal amount, or any portion thereof, and/or any interest on any document or instrument evidencing all or any part of the Obligations is due, (f) of any and all proceedings to collect from any Borrower, any maker, endorser or any guarantor of all or any part of the Obligations, or from anyone else, (g) of the exchange, sale, surrender or other handling of any security or collateral given to Agent to secure payment of the Obligations or any guaranty therefor, and (h) of any action taken by Agent that is authorized by this Agreement;
(iv) any right to require Agent or Lenders to (a) proceed first against any Borrower or any other Person whatsoever, (b) proceed against or exhaust any security given to or held by Agent or Lenders in connection with the Obligations or any guaranty, or (c) pursue any other remedy in Agent’s or any Lender’s power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of any Borrower or any guarantor of all or any portion of the Obligations, (b) the cessation from any cause whatsoever of the liability of any Borrower or any guarantor of all or any portion of the Obligations, (c) any act or omission of Agent or any Lender or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of any Borrower or any security given to or held by Agent or any Lender in connection with the Obligations or any guaranty;
(vi) any and all other suretyship defenses under applicable law (other than payment and performance in full of the Obligations and the termination of the Loan Agreement and all Other Documents); and
(vii) the benefit of any statute of limitations affecting the Obligations or Pledgor’s liability hereunder or the enforcement hereof. All waivers granted by Pledgor hereunder shall be unconditional (except to the extent expressly provided herein) and irrevocable irrespective of whether the Obligations have been paid in full by Pledgor or any other party.
(d) Pledgor hereby assumes responsibility for keeping itself informed of the financial condition of each Borrower, of any and all endorsers and/or guarantors of all or any part of the Obligations and of all other circumstances bearing upon the risk of nonpayment and nonperformance of the Obligations, or any part thereof, and Pledgor hereby agrees that neither Agent nor any Lender shall have any duty to advise Pledgor of information known to Agent or such Lender regarding such condition or any such circumstances. In the event Agent or any Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to Pledgor, neither Agent nor such Lender shall not have any obligation (i) to undertake any investigation, whether or not a part of its regular business routine, (ii) to disclose any information which Agent or such Lender wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information of Pledgor.
Appears in 1 contract
Samples: Cash Collateral Agreement (Hybrook Resources Corp.)
Waivers; Other Agreements. The Guaranteed Party is hereby authorized, without notice to or demand upon Guarantorsany Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors any Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time to:
(i) waive or otherwise consent to noncompliance with any provision of the Note or MortgageDCP II Credit Document, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker Borrower or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by MakerBorrower;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or release any such additional security or collateral;
(iv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party may determine in its sole discretion;
(v) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforetherefor, in any manner;
(vi) add, release or substitute any one or more other guarantors, makers borrowers or endorsers of the Guaranteed Obligations and otherwise deal with Maker Borrower or any other guarantor as the Guaranteed Party may elect in its sole discretion; and
(vii) apply any and all payments or recoveries from MakerBorrower, Guarantors any Guarantor or from any other guarantor of the Guaranteed Obligations, to such of the Guaranteed Obligations as the Guaranteed Party in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Healthpeak Properties, Inc.)
Waivers; Other Agreements. The Guaranteed A. Secured Party is hereby authorized, without notice to or demand upon Guarantorsany of the Debtors, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors any Debtor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Obligations, or any portion thereof, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including without limitation the Loan Agreement and the other Financing Agreements) heretofore, now or hereafter executed by the Borrower or any of the Debtors and delivered to the Secured Party, including without limitation any increase or decrease of the principal amount thereof or the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any agreement, document or instrument (including without limitation the Note Loan Agreement and the other Financing Agreements) evidencing or Mortgagein respect of the Obligations, or any part thereof, heretofore, now or hereafter executed by any of the Borrower and the Debtors and delivered to the Secured Party;
(iii) accept partial payments on the Obligations;
(iv) receive, take and hold security or collateral for the payment or performance of the Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by Maker;
(iii) receive, take and hold additional security or collateral for the payment or performance of any guaranties of all or any part of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Secured Party may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations Obligations, or any part thereof, or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations Obligations, or any other guarantee thereforepart thereof, or any guaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of all or any part of the Guaranteed Obligations and otherwise deal with Maker the Borrower, any of the Debtors or any other guarantor guarantor, maker or endorser as the Guaranteed Secured Party may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Borrower, Guarantors or from any other guarantor of the Guaranteed ObligationsDebtors or any guarantor, to such maker or endorser of all or any part of the Guaranteed Obligations to the Obligations in such order as the Guaranteed Secured Party in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from any of the Debtors or from any guarantor, maker or endorser of all or any part of the Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to Secured Party as Secured Party in its sole discretion may determine, whether or not such indebtedness or obligations relate to the Obligations; and
(x) refund at any time, at Secured Party's sole discretion, any payment received by Secured Party in respect of any Obligations, and payment to Secured Party of the amount so refunded shall be fully secured hereby even though prior thereto this Agreement shall have been canceled or surrendered (or any lien, security interest or other collateral shall have been released or terminated by virtue thereof) by Secured Party, and such prior cancellation or surrender (or release or termination) shall not diminish, release, discharge, impair or otherwise affect the obligations of any Debtor hereunder in respect of the amount so refunded (and any lien, security interest or other collateral so released or terminated shall be reinstated with respect to such obligations).
B. Debtors hereby agree that each of their obligations under this Agreement are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or any guaranty of all or any part of the Obligations or of any promissory note or other agreement, document or instrument (including without limitation the Loan Agreement and the other Financing Agreements) evidencing or in respect of all or any part of the Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for all or any part of the Obligations or any guaranty therefor;
(ii) the absence of any attempt to collect the Obligations, or any portion thereof, from the Borrower, any Debtor or any guarantor or other action to enforce the same;
(iii) any failure by Secured Party to acquire, perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for all or any part of the Obligations or any guaranty therefor;
(iv) any election by Secured Party in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. ss. 101 et seq.) (the "Bankruptcy Code");
(v) any borrowing or grant of a security interest by the Borrower or any Debtor, as debtor-in-possession, or extension of credit, under the Bankruptcy Code;
(vi) the disallowance, under the Bankruptcy Code, of all or any portion of the Secured Party's claim(s) for repayment of the Obligations;
(vii) any use of cash collateral under the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of Secured Party for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Debtor or any guarantor, maker or endorser of all or any part of the Obligations, including without limitation any discharge of, or bar or stay against collecting or accelerating, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) any failure by Secured Party to file or enforce a claim against the Borrower, any Debtor or any estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by Secured Party that is authorized by this Agreement;
(xiii) any election by Secured Party under Section 9-501(4) of the Uniform Commercial Code as enacted in any relevant jurisdiction as to any security for the Obligations or any guaranty of all or any part of the Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
C. Until the Obligations shall have been paid and performed in full and all of the Financing Agreements shall have been terminated, no Debtor shall have any right of subrogation and each Debtor hereby waives any right to enforce any remedy which Secured Party now has or may hereafter have against the Borrower, or any other Debtor or any guarantor of all or any part of the Obligations, and each Debtor hereby waives any benefit of, and any right to participate in, any security or collateral given to Secured Party to secure payment, or performance of any of the Obligations or any other liability of the Borrower or any Debtor to Secured Party. Each Debtor further agrees that any and all claims of such Debtor against the Borrower, any other Debtor or any guarantor of all or any part of the Obligations, or against any of their respective properties, arising by reason of this Agreement, including without limitation by reason of any payment by such Debtor to Secured Party pursuant to the provisions hereof, shall be subordinate and subject in right of payment to the prior payment, in full, of all principal and interest, all reasonable costs of collection (including attorneys' and paralegals' fees) and payment and performance in full of any other liabilities or obligations of each of the Debtors and Borrower to Secured Party, including without limitation the Liabilities, which may arise either with respect to, on or under any Financing Agreement or any other note, instrument, document, item, agreement or other writing heretofore, now or hereafter delivered to Secured Party. Each Debtor further waives:
(i) any requirements of diligence or promptness on the part of Secured Party;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Obligations or any guaranty with respect thereto;
(iii) notices (a) of nonperformance, (b) of acceptance of this Agreement, (c) of default in respect of the Obligations, (d) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to the Borrower or any Debtor or otherwise, (e) that the principal amount, or any portion thereof, and/or any interest on any document or instrument evidencing all or any part of the Obligations is due, (f) of any and all proceedings to collect from the Borrower, any other Debtor, any guarantor, maker or endorser of all or any part of the Obligations, or from anyone else, and (g) of exchange, sale, surrender or other handling of any security or collateral given to Secured Party to secure payment of the Obligations or any guaranty therefor;
(iv) any right to require Secured Party to (a) proceed first against the Borrower, any other Debtor or any other Person whatsoever, (b) proceed against or exhaust any security given to or held by Secured Party in connection with the Obligations, or (c) pursue any other remedy in Secured Party's power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of the Borrower or any other Debtor, (b) the cessation from any cause whatsoever of the liability of the Borrower or any other Debtor, (c) any act or omission of Secured Party or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of the Borrower or any other Debtor or any security given to or held by Secured Party in connection with the Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Obligations or any Debtor's liability hereunder or the enforcement hereof. In connection with the foregoing, Debtors covenant that this Agreement shall not be discharged, except by complete performance of the obligations contained herein and the payment and discharge in full of all of the Obligations and termination of all Financing Agreements (including without limitation any commitments with respect to the Liabilities). All waivers granted by each Debtor hereunder shall be unconditional and irrevocable irrespective of whether the Obligations have been paid in full by any Debtor or any other party.
D. Each Debtor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower and the other Debtors, of any and all endorsers and/or guarantors of all or any part of the Obligations and of all other circumstances bearing upon the risk of nonpayment and nonperformance of the Obligations, or any part thereof, and each Debtor hereby agrees that Secured Party shall not have any duty to advise such Debtor of information known to Secured Party regarding such condition or any such circumstances. In the event Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Debtor, Secured Party shall not have any obligation (i) to undertake any investigation, whether or not a part of its regular business routine, (ii) to disclose any information which Secured Party wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information to any Debtor.
E. No Debtor shall take any action which would, directly or indirectly, result in an Event of Default or Default under the Loan Agreement.
Appears in 1 contract
Samples: Security Agreement (Allied Digital Technologies Corp)
Waivers; Other Agreements. A. The Guaranteed Party Lender is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or any portion thereof, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the other Financing Agreements) now or hereafter executed by the Borrower and delivered to the Lender, including, without limitation, any increase or decrease of the principal amount thereof or the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any agreement, document or instrument (including, without limitation, the Note Loan Agreement and the other Financing Agreements) evidencing or Mortgagein respect of the Guaranteed Obligations, or any part thereof, now or hereafter executed by the Borrower and delivered to the Lender;
(iii) accept partial payments on the Guaranteed Obligations;
(iv) receive, take and hold security or collateral for the payment or performance of the Guaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by Maker;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment performance of any other guarantees guaranties of all or any part of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Lender may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations Obligations, or any part thereof, or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations Obligations, or any part thereof, or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of all or any part of the Guaranteed Obligations and otherwise deal with Maker the Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Lender may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Guarantor, Guarantors from the Borrower or from any other guarantor guarantor, maker or endorser of the Guaranteed Obligations, to such all or any part of the Guaranteed Obligations to the Guaranteed Obligations in such order as the Guaranteed Party Lender in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of all or any part of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Lender, as the Lender in its sole discretion may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund at any time, at the Lender's sole discretion, any payment received by the Lender in respect of any Guaranteed Obligations, and payment to the Lender of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any lien, security interest or other collateral shall have been released or terminated by virtue thereof) by the Lender, and such prior cancellation or surrender (or release or termination) shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any lien, security interest or other collateral so released or terminated shall be reinstated with respect to such obligations).
B. The Guarantor hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of all or any part of the Guaranteed Obligations or of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the Financing Agreements) evidencing or in respect of all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for all or any part of the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations, or any portion thereof, from the Borrower or any other guarantor or other action to enforce the same;
(iii) any failure by the Lender to acquire, perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for all or any part of the Guaranteed Obligations or any guaranty therefor;
(iv) any election by the Lender in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. ss. 101 et seq.) (the "Bankruptcy Code");
(v) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under the Bankruptcy Code;
(vi) the disallowance, under the Bankruptcy Code, of all or any portion of the Lender's claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of the Lender for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, the Guarantor or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting or accelerating, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) any failure by the Lender to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by the Lender that is authorized by this Guaranty;
(xiii) any election by the Lender under Section 9-501(4) of the Uniform Commercial Code as enacted in any relevant jurisdiction as to any security for the Guaranteed Obligations or any guaranty of all or any part of the Guaranteed Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
C. Until the Guaranteed Obligations shall have been paid and performed in full and all of the Financing Agreements shall have been terminated, the Guarantor shall have no right of subrogation and hereby waives any right to enforce any remedy which the Lender now has or may hereafter have against the Borrower or any guarantor of all or any part of the Guaranteed Obligations, and the Guarantor hereby waives any benefit of, and any right to participate in, any security or collateral given to the Lender to secure payment or performance of any of the Guaranteed Obligations or any other liability of the Borrower to the Lender. The Guarantor further agrees that any and all claims of the Guarantor against the Borrower or any guarantor of all or any part of the Guaranteed Obligations, or against any of their respective properties, arising by reason of this Guaranty, including without limitation by reason of any payment by the Guarantor to the Lender pursuant to the provisions hereof, shall be subordinate and subject in right of payment to the prior payment, in full, of all principal and interest, all reasonable costs of collection (including attorneys' and paralegals' fees) and payment and performance in full of any other liabilities or obligations to the Lender by the Borrower, including without limitation the Liabilities, which may arise either with respect to or on any Financing Agreement or any other note, instrument, document, item, agreement or other writing heretofore, now or hereafter delivered to the Lender. The Guarantor further waives:
(i) any requirements of diligence or promptness on the part of the Lender;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations or any guaranty with respect thereto;
(iii) notices (a) of nonperformance, (b) of acceptance of this Guaranty, (c) of default in respect of the Guaranteed Obligations, (d) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to the Borrower or otherwise, (e) that the principal amount, or any portion thereof, and/or any interest on any document or instrument evidencing all or any part of the Guaranteed Obligations is due, (f) of any and all proceedings to collect from the Borrower, any maker, endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (g) of exchange, sale, surrender or other handling of any security or collateral given to the Lender to secure payment of the Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Lender to (a) proceed first against the Borrower, or any other Person whatsoever, (b) proceed against or exhaust any security given to or held by the Lender in connection with the Guaranteed Obligations, or (c) pursue any other remedy in the Lender's power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of the Borrower, (b) the cessation from any cause whatsoever of the liability of the Borrower, (c) any act or omission of the Lender or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of the Borrower or any security given to or held by the Lender in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Guaranteed Obligations or the Guarantor's liability hereunder or the enforcement hereof. In connection with the foregoing, the Guarantor covenants that this Guaranty shall not be discharged, except by complete performance of the obligations contained herein and the payment and discharge in full of all of the Liabilities and termination of all Financing Agreements (including without limitation any commitments with respect to the Liabilities). All waivers granted by the Guarantor hereunder shall be unconditional and irrevocable irrespective of whether the Guaranteed Obligations have been paid in full by the Guarantor or any other party.
D. The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, of any and all endorsers and/or other guarantors of all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment and nonperformance of the Guaranteed Obligations, or any part thereof, and the Guarantor hereby agrees that the Lender shall not have any duty to advise the Guarantor of information known to the Lender regarding such condition or any such circumstances. In the event the Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, the Lender shall not have any obligation (i) to undertake any investigation, whether or not a part of its regular business routine, (ii) to disclose any information which the Lender wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information of the Guarantor.
E. The Guarantor shall not take any action which would, directly or indirectly, result in an Event of Default or Default under the Loan Agreement.
Appears in 1 contract
Samples: Guaranty Agreement (Allied Digital Technologies Corp)
Waivers; Other Agreements. The Guaranteed Party (i) Subject to the terms hereof, the Agent is hereby authorizedauthorized by the Borrowers (subject to any additional authorization required by the Lenders or the Required Lenders), without notice to or demand upon Guarantorsany Borrower, which notice or demand is expressly waived herebyunder this Article 13, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors hereunder any Borrower under this Article 13 (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(iA) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including this Agreement and the other Loan Documents) now or hereafter executed by any Borrower and delivered to the Agent, including, without limitation, any increase or decrease of the rate of interest thereon;
(B) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Note or MortgageGuaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including this Agreement and the other Loan Documents) now or hereafter executed by Maker or any other person Borrower and delivered to the Guaranteed PartyAgent;
(iiC) accept partial payments on the Guaranteed Obligations by MakerObligations;
(iiiD) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this GuaranteeObligations, or for the payment of any other guarantees guaranties of the Guaranteed ObligationsObligations or other liabilities of any Borrower, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivE) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent may determine in its sole discretion;
(vF) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforeguaranty therefor, in any manner;
(viG) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker enforce its rights under the Loan Documents against any Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent may elect in its sole discretion; and;
(viiH) apply any and all payments or recoveries from Makerany Borrower, Guarantors or from any other guarantor of the Guaranteed Obligationsguarantor, to such maker or endorser of the Guaranteed Obligations to the Obligations in such order as the Guaranteed Party provided in its sole discretion may determineSection 3.5 hereof, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(I) apply any and all payments or recoveries from any Borrower or any other guarantor, maker or endorser of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Agent as the Agent in its sole discretion, may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(J) refund at any time, at the Agent’s sole discretion, any payment received by the Agent in respect of any Guaranteed Obligations, and payment to the Agent of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Agreement shall have been cancelled or surrendered (or any release or termination of any collateral by virtue thereof) by the Agent, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any Borrower hereunder in respect of the amount so refunded (and any collateral so released or terminated shall be reinstated with respect to such obligations); even if any right of reimbursement or subrogation or other right or remedy of any Borrower is extinguished, affected or impaired by any of the foregoing (including, without limitation, any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations which impairs any subrogation, reimbursement or other right of such Borrower). The foregoing provisions are intended to eliminate suretyship defenses and are not intended to affect the operation of Section 11.1.
(ii) Each Borrower hereby waives, with respect to this Article 13:
(A) any requirements of diligence or promptness on the part of the Agent;
(B) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations;
(C) notices (I) of nonperformance, (II) of acceptance of this Agreement, (III) of default in respect of the Guaranteed Obligations, (IV) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to any Borrower or otherwise, (V) that the principal amount, or any portion thereof, and/or any interest on any instrument or document evidencing all or any part of the Guaranteed Obligations is due, (VI) of any and all proceedings to collect from any Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (VII) of exchange, sale, surrender or other handling of any security or collateral given to the Agent to secure payment of the Guaranteed Obligations or any guaranty therefor;
(D) any right to require the Agent to (I) proceed first against any other Borrower, or any other person whatsoever, (II) proceed against or exhaust any security given to or held by the Agent in connection with the Guaranteed Obligations, or (III) pursue any other remedy in the Agent’s power whatsoever;
(E) any defense arising by reason of (I) any disability or other defense of any Borrower, (II) the cessation from any cause whatsoever of the liability of any Borrower, (III) any act or omission of the Agent or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of any Borrower or any security given to or held by the Agent in connection with the Guaranteed Obligations;
(F) any and all other suretyship defenses under applicable law; and
(G) the benefit of any statute of limitations affecting the Guaranteed Obligations or such Borrower’s liability under this Article 13 or the enforcement of this Article 13. In connection with the foregoing, each Borrower covenants that the provisions of this Article 13 shall not be discharged, except by complete performance of the obligations contained herein.
(iii) Each Borrower hereby assumes responsibility for keeping itself informed of the financial condition of each other Borrower, of any and all endorsers and/or other guarantors of any instrument or document evidencing all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations or any part thereof that diligent inquiry would reveal and each Borrower hereby agrees that the Agent shall not have any duty to advise any Borrower of information known to the Agent regarding such condition or any such circumstances.
(iv) Each Borrower hereby agrees that any Debt of any other Borrower now or hereafter owing to such Borrower is hereby subordinated to all of the Guaranteed Obligations, whether heretofore, now or hereafter created (the “Subordinated Debt”), and that without the prior consent of the Agent, the Subordinated Debt shall not be paid in whole or in part until the Guaranteed Obligations have been paid in full, the commitments of the Lenders to extend credit under the Credit Agreement have been terminated, no Letters of Credit are outstanding and the Credit Agreement has been terminated and is of no further force or effect, except that payments of principal and interest on the Subordinated Debt shall be permitted so long as no Event of Default shall have occurred and be continuing to the extent such payments would not render such Borrower incapable of performing the Guaranteed Obligations. No Borrower will accept any payment of or on account of any Subordinated Debt at any time in contravention of the foregoing. At the request of the Agent, each Borrower shall pay to the Agent all or any part of the Subordinated Debt and any amount so paid to the Agent shall be applied to payment of the Guaranteed Obligations. Each payment on the Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by the relevant Borrower as trustee for the Agent and shall be paid over to the Agent immediately on account of the Guaranteed Obligations, but without otherwise affecting in any manner such Borrower’s liability under any of the provisions of this Agreement. Each Borrower agrees to file all claims against any other Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of any Subordinated Debt, and the Agent shall be entitled to all of such Borrower’s right thereunder. If for any reason the relevant Borrower fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, the Agent, as such Borrower’s attorney-in-fact, is hereby authorized to do so in such Borrower’s name or, in the Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, each Borrower hereby assigns to the Agent all such Borrower’s rights to any payments or distributions to which such Borrower otherwise would be entitled. If the amount so paid is greater than such Borrower’s liability hereunder, the Agent will pay the excess amount to the party entitled thereto. In addition, until all the Guaranteed Obligations have been paid in full in cash, each Borrower hereby appoints the Agent as its attorney-in-fact to exercise all of such Borrower’s voting rights in connection with any bankruptcy proceeding or any plan for the reorganization of any other Borrower.
Appears in 1 contract
Waivers; Other Agreements. The Guaranteed Party (a) Subject to the terms hereof and of the other Loan Documents, the Agent is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or otherwise modify, amend, restate or change the terms of any promissory note or other agreement, document or instrument (including the Credit Agreement and the other Loan Documents) now or hereafter executed by any Borrower and delivered to the Agent, including, without limitation, any increase or decrease of the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Note or MortgageGuaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including the Credit Agreement and the other Loan Documents) now or hereafter executed by Maker or any other person Borrower and delivered to the Guaranteed PartyAgent;
(iiiii) accept partial payments on the Guaranteed Obligations by MakerObligations;
(iiiiv) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this GuaranteeObligations, or for the payment of any other guarantees guaranties of the Guaranteed ObligationsObligations or other liabilities of any Borrower, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker enforce its rights under the Loan Agreements against any Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Borrower, Guarantors or from any other guarantor of the Guaranteed Obligationsguarantor, to such maker or endorser of the Guaranteed Obligations as or from the Guarantor to the Guaranteed Party Obligations to the Obligations in its sole discretion may determinesuch order as provided in Section 3.5 of the Credit Agreement, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Agent as the Agent in its sole discretion, may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund at any time, at the Agent’s sole discretion, any payment received by the Agent in respect of any Guaranteed Obligations, and payment to the Agent of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any release or termination of any collateral by virtue thereof) by the Agent, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any collateral so released or terminated shall be reinstated with respect to such obligations); even if any right of reimbursement or subrogation or other right or remedy of the Guarantor is extinguished, affected or impaired by any of the foregoing (including, without limitation, any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations which impairs any subrogation, reimbursement or other right of Guarantor).
(b) The Guarantor hereby agrees that this Guaranty is a continuing, unconditional guaranty of payment and not of collection and that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of the Guaranteed Obligations or of any promissory note or other document (including, without limitation, the Credit Agreement) evidencing all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations from the Borrower or any other guarantor or other action to enforce the same;
(iii) failure by the Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations or any other guaranty therefor;
(iv) [intentionally omitted];
(v) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code;
(vi) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the Agent’s claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under Section 363 of the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of the Agent for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Borrower, the Guarantor or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) failure by the Agent to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by the Agent that is authorized by this Guaranty;
(xiii) any election by the Agent under Section 9-501(4) of the Uniform Commercial Code, or any successor provision, as enacted in any relevant jurisdiction (the “Code”) as to any security for the Guaranteed Obligations or any guaranty of the Guaranteed Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(c) The Guarantor hereby waives:
(i) any requirements of diligence or promptness on the part of the Agent;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations;
(iii) notices (A) of nonperformance, (B) of acceptance of this Guaranty, (C) of default in respect of the Guaranteed Obligations, (D) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to any Borrower or otherwise, (E) that the principal amount, or any portion thereof, and/or any interest on any instrument or document evidencing all or any part of the Guaranteed Obligations is due, (F) of any and all proceedings to collect from any Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (G) of exchange, sale, surrender or other handling of any security or collateral given to the Agent to secure payment of the Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Agent to (a) proceed first against any Borrower, or any other person whatsoever, (b) proceed against or exhaust any security given to or held by the Agent in connection with the Guaranteed Obligations, or (c) pursue any other remedy in the Agent’s power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of any Borrower, (b) the cessation from any cause whatsoever of the liability of any Borrower, (c) any act or omission of the Agent or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of any Borrower or any security given to or held by the Agent in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Guaranteed Obligations or the Guarantor’s liability hereunder or the enforcement hereof. In connection with the foregoing, the Guarantor covenants that this Guaranty shall not be discharged, except by complete performance of the obligations contained herein.
(d) The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrowers, of any and all endorsers and/or other guarantors of any instrument or document evidencing all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations or any part thereof that diligent inquiry would reveal and the Guarantor hereby agrees that the Agent shall not have any duty to advise the Guarantor of information known to the Agent regarding such condition or any such circumstances.
(e) The Guarantor hereby agrees that (i) until such time as the Guaranteed Obligations have been paid in full, the commitments of the Lenders to extend credit under the Credit Agreement have been terminated, no Letters of Credit exist that have not been Fully Supported, and the Credit Agreement has been terminated and is of no further force or effect (the “Satisfaction Date”) and (ii) during any period that the Guaranteed Obligations may arise or be reinstated after the Satisfaction Date whether pursuant Section 4(h) below or otherwise, the Guarantor agrees that it shall not exercise any claim or other rights which it may now or hereafter acquire against any Borrower that arises from the existence, payment, performance or enforcement of the Guarantor’s obligations or liabilities under this Guaranty, including any right of subrogation, reimbursement, exoneration or indemnification, any right to participate in any claim or remedy against any Borrower or any collateral which the Agent or any Lender now has or hereafter acquires an interest, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by setoff or in any manner, payment or security on account of such claim or other rights. If any amount shall be paid to the Guarantor in violation of the preceding sentence, such amount shall be deemed to have been paid for the benefit of the Agent and the Lenders, and shall forthwith be paid to the Agent to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, as the Agent may determine.
(f) The Guarantor hereby agrees that any indebtedness of any Borrower now or hereafter owing to the Guarantor is hereby subordinated to all of the Guaranteed Obligations, whether heretofore, now or hereafter created (the “Subordinated Debt”), and that without the prior consent of the Agent, the Subordinated Debt shall not be paid in whole or in part until the Satisfaction Date shall have occurred, except that payments of principal and interest on the Subordinated Debt shall be permitted so long as no Event of Default shall have occurred and be continuing to the extent such payments would not render such Borrower incapable of performing the Guaranteed Obligations. The Guarantor will not accept any payment of or on account of any Subordinated Debt at any time in contravention of the foregoing. At the request of the Agent, the applicable Borrower shall pay to the Agent all or any part of the Subordinated Debt and any amount so paid to the Agent shall be applied to payment of the Guaranteed Obligations. Each payment on the Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by Guarantor as trustee for the Agent and shall be paid over to the Agent immediately on account of the Guaranteed Obligations, but without otherwise affecting in any manner the Guarantor’s liability under any of the provisions of this Guaranty. The Guarantor agrees to file all claims against the applicable Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of any Subordinated Debt, and the Agent shall be entitled to all of the Guarantor’s right thereunder. If for any reason the Guarantor fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, the Agent, as the Guarantor’s attorney-in-fact, is hereby authorized to do so in the Guarantor’s name or, in the Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, the Guarantor hereby assigns to the Agent all Guarantor’s rights to any payments or distributions to which the Guarantor otherwise would be entitled. If the amount so paid is greater than the Guarantor’s liability hereunder, the Agent will pay the excess amount to the party entitled thereto. In addition, until the Guaranteed Obligations have been paid in full, the Guarantor hereby appoints Agent as its attorney-in-fact to exercise all of the Guarantor’s voting rights in connection with any bankruptcy proceeding or any plan for the reorganization of such Borrower.
(g) The Guarantor shall comply with all covenants stated to be applicable to it under the Credit Agreement. The Guarantor shall also cause each Borrower to comply with all covenants applicable to such Borrower under the Credit Agreement.
(h) The Guarantor agrees that, if any payment made by any Borrower or any other person and applied to the Guaranteed Obligations is at any time annulled, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by the Agent, any of the Lenders and any Letter of Credit Issuer to any Borrower or the Guarantor, its estate, trustee, receiver or any other party, including, without limitation, any guarantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guarantor’s liability under this Guaranty (and any lien, security interest or other collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made, or, if prior thereto this Guaranty shall have been cancelled or surrendered (and if any lien, security interest or other collateral securing any Guarantor’s liability under this Guaranty shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such lien, security interest or other collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor under this Guaranty in respect of the amount of such payment (or any lien, security interest or other collateral securing such obligation).
Appears in 1 contract
Waivers; Other Agreements. A. The Guaranteed Party Lender is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or any portion thereof, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the other Financing Agreements) now or hereafter executed by the Borrower and delivered to the Lender, including, without limitation, any increase or decrease of the principal amount thereof or the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any agreement, document or instrument (including, without limitation, the Note Loan Agreement and the other Financing Agreements) evidencing or Mortgagein respect of the Guaranteed Obligations, or any part thereof, now or hereafter executed by the Borrower and delivered to the Lender;
(iii) accept partial payments on the Guaranteed Obligations;
(iv) receive, take and hold security or collateral for the payment or performance of the Guaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by Maker;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment performance of any other guarantees guaranties of all or any part of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Lender may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations Obligations, or any part thereof, or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations Obligations, or any part thereof, or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of all or any part of the Guaranteed Obligations and otherwise deal with Maker the Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Lender may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Guarantor, Guarantors from the Borrower or from any other guarantor guarantor, maker or endorser of the Guaranteed Obligations, to such all or any part of the Guaranteed Obligations to the Guaranteed Obligations in such order as the Guaranteed Party Lender in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of all or any part of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Lender, as the Lender in its sole discretion may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund to Borrower or any Person making any payment (or its estate, a trustee or receiver) at any time, at the Lender's sole discretion, any payment received by the Lender in respect of any Guaranteed Obligations, and payment to the Lender of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any lien, security interest or other collateral shall have been released or terminated by virtue thereof) by the Lender, and such prior cancellation or surrender (or release or termination) shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any lien, security interest or other collateral so released or terminated shall be reinstated with respect to such obligations).
B. The Guarantor hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of all or any part of the Guaranteed Obligations or of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the Financing Agreements) evidencing or in respect of all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for all or any part of the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations, or any portion thereof, from the Borrower or any other guarantor or other action to enforce the same;
(iii) any failure by the Lender to acquire, perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for all or any part of the Guaranteed Obligations or any guaranty therefor;
(iv) any election by the Lender in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. ss. 101 et seq.) (the "Bankruptcy Code");
(v) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under the Bankruptcy Code;
(vi) the disallowance, under the Bankruptcy Code, of all or any portion of the Lender's claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of the Lender for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, the Guarantor or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting or accelerating, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) any failure by the Lender to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by the Lender that is authorized by this Guaranty;
(xiii) any election by the Lender under Section 9-501(4) of the Uniform Commercial Code as enacted in any relevant jurisdiction as to any security for the Guaranteed Obligations or any guaranty of all or any part of the Guaranteed Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
C. Until the Guaranteed Obligations shall have been paid and performed in full and all of the Financing Agreements shall have been terminated, the Guarantor shall have no right of subrogation and hereby waives any right to enforce any remedy which the Lender now has or may hereafter have against the Borrower or any guarantor of all or any part of the Guaranteed Obligations, and the Guarantor hereby waives any benefit of, and any right to participate in, any security or collateral given to the Lender to secure payment or performance of any of the Guaranteed Obligations or any other liability of the Borrower to the Lender. The Guarantor further agrees that any and all claims of the Guarantor against the Borrower or any guarantor of all or any part of the Guaranteed Obligations, or against any of their respective properties, arising by reason of this Guaranty, including without limitation by reason of any payment by the Guarantor to the Lender pursuant to the provisions hereof, shall be subordinate and subject in right of payment to the prior payment, in full, of all principal and interest, all reasonable costs of collection (including attorneys' and paralegals' fees) and payment and performance in full of any other liabilities or obligations to the Lender by the Borrower, including without limitation the Liabilities, which may arise either with respect to or on any Financing Agreement or any other note, instrument, document, item, agreement or other writing heretofore, now or hereafter delivered to the Lender. The Guarantor further waives:
(i) any requirements of diligence or promptness on the part of the Lender;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations or any guaranty with respect thereto;
(iii) notices (a) of nonperformance, (b) of acceptance of this Guaranty, (c) of default in respect of the Guaranteed Obligations, (d) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to the Borrower or otherwise, (e) that the principal amount, or any portion thereof, and/or any interest on any document or instrument evidencing all or any part of the Guaranteed Obligations is due, (f) of any and all proceedings to collect from the Borrower, any maker, endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (g) of exchange, sale, surrender or other handling of any security or collateral given to the Lender to secure payment of the Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Lender to (a) proceed first against the Borrower or any other Person whatsoever, (b) proceed against or exhaust any security given to or held by the Lender in connection with the Guaranteed Obligations, or (c) pursue any other remedy in the Lender's power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of the Borrower, (b) the cessation from any cause whatsoever of the liability of the Borrower, (c) any act or omission of the Lender or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of the Borrower or any security given to or held by the Lender in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Guaranteed Obligations or the Guarantor's liability hereunder or the enforcement hereof. In connection with the foregoing, the Guarantor covenants that this Guaranty shall not be discharged, except by complete performance of the obligations contained herein and the payment and discharge in full of all of the Liabilities and termination of all Financing Agreements (including without limitation any commitments with respect to the Liabilities). All waivers granted by the Guarantor hereunder, shall be unconditional and irrevocable irrespective of whether the Guaranteed Obligations have been paid in full by the Guarantor or any other party.
D. The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, of any and all endorsers and/or other guarantors of all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment and nonperformance of the Guaranteed Obligations, or any part thereof, and the Guarantor hereby agrees that the Lender shall not have any duty to advise the Guarantor of information known to the Lender regarding such condition or any such circumstances. In the event the Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, the Lender shall not have any obligation (i) to undertake any investigation, whether or not a part of its regular business routine, (ii) to disclose any information which the Lender wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information of the Guarantor.
E. The Guarantor shall not take any action which would, directly or indirectly, result in an Event of Default or Default under the Loan Agreement.
F. The Guarantor shall take such actions as may be required by Holdings to enable Holdings to fulfill its obligations under the Holdings Guaranty and shall not take any action or fail to take any action which would result in a breach or default of the provisions of the Holdings Guaranty which relate to the Guarantor or its Subsidiaries.
Appears in 1 contract
Samples: Guaranty Agreement (Allied Digital Technologies Corp)
Waivers; Other Agreements. The Guaranteed Party is hereby authorized, without notice to or demand upon GuarantorsGuarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time to:
(i) waive or otherwise consent to noncompliance with any provision of the Note Credit Document or Mortgage, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker Borrower or any other person and delivered to the Guaranteed Party, except that Borrower shall not extend the time for payment of the Guaranteed Obligations by Borrower;
(ii) accept partial payments on the Guaranteed Obligations by MakerBorrower;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or release any such additional security or collateral;
(iv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party may determine in its sole discretion;
(v) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee therefore, in any manner;
(vi) add, release or substitute any one or more other guarantorsguarantor, makers Borrowers or endorsers of the Guaranteed Obligations and otherwise deal with Maker Borrower or any other guarantor as the Guaranteed Party may elect in its sole discretion; and
(vii) apply any and all payments or recoveries from MakerBorrower, Guarantors Guarantor or from any other guarantor of the Guaranteed Obligations, to such of the Guaranteed Obligations as the Guaranteed Party in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Health Care Property Investors Inc)
Waivers; Other Agreements. The Guaranteed Party A. Agent and each Lender is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or any portion thereof, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the other Financing Agreements) now or hereafter executed by the Borrower and delivered to Agent or any Lender, including, without limitation, any increase or decrease of the principal amount thereof, the rate of interest thereon or fees payable in connection therewith;
(ii) waive or otherwise consent to noncompliance with any provision of any agreement, document or instrument (including, without limitation, the Note Loan Agreement and the other Financing Agreements) evidencing or Mortgagein respect of the Guaranteed Obligations, or any part thereof, now or hereafter executed by the Borrower and delivered to Agent or any Lender;
(iii) accept partial payments on the Guaranteed Obligations;
(iv) receive, take and hold security or collateral for the payment or performance of the Guaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by Maker;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment performance of any other guarantees guaranties of all or any part of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent or any Lender may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations Obligations, or any part thereof, or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations Obligations, or any part thereof, or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of all or any part of the Guaranteed Obligations and otherwise deal with Maker the Borrower, or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent or any Lender may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Guarantor, Guarantors from the Borrower or from any other guarantor guarantor, maker or endorser of the Guaranteed Obligations, to such all or any part of the Guaranteed Obligations in such order as the Guaranteed Party Agent or any Lender in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of all or any part of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to Agent or any Lender as Agent or any Lender in its sole discretion may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund at any time, at Agent's or any Lender's sole discretion, any payment received by Agent or any Lender in respect of any Guaranteed Obligations, and payment to Agent or any Lender of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any lien, security interest or other collateral shall have been released or terminated by virtue thereof), and such prior cancellation or surrender (or release or termination) shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any lien, security interest or other collateral so released or terminated shall be reinstated with respect to such obligations).
B. The Guarantor hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of all or any part of the Guaranteed Obligations or of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the other Financing Agreements) evidencing or in respect of all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for all or any part of the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations, or any portion thereof, from the Borrower, or any other guarantor or other action to enforce the same;
(iii) any failure by Agent or any Lender to acquire, perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for all or any part of the Guaranteed Obligations or any guaranty therefor;
(iv) any election by Agent or any Lender in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. (S) 101 et seq.) (the "Bankruptcy Code");
(v) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under the Bankruptcy Code;
(vi) the disallowance, under the Bankruptcy Code, of all or any portion of Agent's or any Lender's claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of Agent for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, the Guarantor, or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting or accelerating, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) any failure by Agent or any Lender to file or enforce a claim against the Borrower or such Person's estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by Agent or any Lender that is authorized by this Guaranty;
(xiii) any election by Agent or any Lender under Section 9-501(4) of the Uniform Commercial Code as enacted in any relevant jurisdiction as to any security for the Guaranteed Obligations or any guaranty of all or any part of the Guaranteed Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
C. Until the Guaranteed Obligations have been paid and performed in full and the Loan Agreement and other Financing Agreements have been terminated, the Guarantor hereby irrevocably waives and releases the Borrower from all "claims" (as defined in Section 101(5) of the Bankruptcy Code) to which the Guarantor is or would at any time be entitled by virtue of its obligations under this Guaranty, including, without limitation, any right of subrogation (whether contractual, under Section 509 of the Bankruptcy Code or otherwise), reimbursement, contribution, exoneration or similar right against the Borrower, or by virtue of any other indebtedness or obligations of the Borrower to the Guarantor now existing or hereafter incurred. The Guarantor further waives:
(i) any requirements of diligence or promptness on the part of Agent or any Lender;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations or any guaranty with respect thereto;
(iii) notices (a) of nonperformance, (b) of acceptance of this Guaranty, (c) of default in respect of the Guaranteed Obligations or any other guaranty, (d) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to the Borrower or otherwise, (e) that the principal amount, or any portion thereof, and/or any interest on any document or instrument evidencing all or any part of the Guaranteed Obligations is due, (f) of any and all proceedings to collect from the Borrower, any maker, endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (g) of exchange, sale, surrender or other handling of any security or collateral given to Agent or any Lender to secure payment of the Guaranteed Obligations or any guaranty therefor;
(iv) any right to require Agent or any Lender to (a) proceed first against the Borrower, or any other Person whatsoever, (b) proceed against or exhaust any security given to or held by Agent or any Lender in connection with the Guaranteed Obligations or any other guaranty, or (c) pursue any other remedy in Agent or any Lender's power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of the Borrower, (b) the cessation from any cause whatsoever of the liability of the Borrower, (c) any act or omission of Agent or any Lender or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of the Borrower or any security given to or held by Agent or any Lender in connection with the Guaranteed Obligations or any other guaranty;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Guaranteed Obligations or the Guarantor's liability hereunder or the enforcement hereof. In connection with the foregoing, the Guarantor covenants that this Guaranty shall not be discharged, except by complete performance of the obligations contained herein and the payment and discharge in full of all of the Liabilities and termination of all Financing Agreements (including without limitation any commitments with respect to the Liabilities). All waivers granted by the Guarantor hereunder shall be unconditional and irrevocable irrespective of whether the Guaranteed Obligations have been paid in full by the Guarantor or any other party.
Appears in 1 contract
Samples: Loan and Security Agreement (Abc Rail Products Corp)
Waivers; Other Agreements. The Guaranteed Party (i) Subject to the terms hereof, the Agent is hereby authorizedauthorized by the U.S. Borrowers (subject to any additional authorization required by the Lenders or the Required Lenders), without notice to or demand upon Guarantorsany U.S. Borrower, which notice or demand is expressly waived herebyunder this Article 13, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors hereunder any U.S. Borrower under this Article 13 (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(iA) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including this Agreement and the other Loan Documents) now or hereafter executed by any U.S. Borrower and delivered to the Agent, including, without limitation, any increase or decrease of the rate of interest thereon;
(B) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Note or MortgageGuaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including this Agreement and the other Loan Documents) now or hereafter executed by Maker or any other person U.S. Borrower and delivered to the Guaranteed PartyAgent;
(iiC) accept partial payments on the Guaranteed Obligations by MakerObligations;
(iiiD) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this GuaranteeObligations, or for the payment of any other guarantees guaranties of the Guaranteed ObligationsObligations or other liabilities of any U.S. Borrower, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivE) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent may determine in its sole discretion;
(vF) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforeguaranty therefor, in any manner;
(viG) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker enforce its rights under the Loan Documents against any U.S. Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent may elect in its sole discretion; and;
(viiH) apply any and all payments or recoveries from Makerany U.S. Borrower, Guarantors or from any other guarantor of the Guaranteed Obligationsguarantor, to such maker or endorser of the Guaranteed Obligations to the Obligations in such order as the Guaranteed Party provided in its sole discretion may determineSection 3.5 hereof, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(I) apply any and all payments or recoveries from any U.S. Borrower or any other guarantor, maker or endorser of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Agent as the Agent in its sole discretion, may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(J) refund at any time, at the Agent’s sole discretion, any payment received by the Agent in respect of any Guaranteed Obligations, and payment to the Agent of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Agreement shall have been cancelled or surrendered (or any release or termination of any collateral by virtue thereof) by the Agent, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any U.S. Borrower hereunder in respect of the amount so refunded (and any collateral so released or terminated shall be reinstated with respect to such obligations); even if any right of reimbursement or subrogation or other right or remedy of any U.S. Borrower is extinguished, affected or impaired by any of the foregoing (including, without limitation, any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations which impairs any subrogation, reimbursement or other right of such Borrower). The foregoing provisions are intended to eliminate suretyship defenses and are not intended to affect the operation of Section 11.1.
(ii) Each U.S. Borrower hereby waives, with respect to this Article 13:
(A) any requirements of diligence or promptness on the part of the Agent;
(B) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations;
(C) notices (I) of nonperformance, (II) of acceptance of this Agreement, (III) of default in respect of the Guaranteed Obligations, (IV) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to any Borrower or otherwise, (V) that the principal amount, or any portion thereof, and/or any interest on any instrument or document evidencing all or any part of the Guaranteed Obligations is due, (VI) of any and all proceedings to collect from any Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (VII) of exchange, sale, surrender or other handling of any security or collateral given to the Agent to secure payment of the Guaranteed Obligations or any guaranty therefor;
(D) any right to require the Agent to (I) proceed first against any other Borrower, or any other person whatsoever, (II) proceed against or exhaust any security given to or held by the Agent in connection with the Guaranteed Obligations, or (III) pursue any other remedy in the Agent’s power whatsoever;
(E) any defense arising by reason of (I) any disability or other defense of any U.S. Borrower, (II) the cessation from any cause whatsoever of the liability of any U.S. Borrower, (III) any act or omission of the Agent or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of any Borrower or any security given to or held by the Agent in connection with the Guaranteed Obligations;
(F) any and all other suretyship defenses under applicable law; and
(G) the benefit of any statute of limitations affecting the Guaranteed Obligations or such U.S. Borrower’s liability under this Article 13 or the enforcement of this Article 13. In connection with the foregoing, each U.S. Borrower covenants that the provisions of this Article 13 shall not be discharged, except by complete performance of the obligations contained herein.
(iii) Each U.S. Borrower hereby assumes responsibility for keeping itself informed of the financial condition of each other Borrower, of any and all endorsers and/or other guarantors of any instrument or document evidencing all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations or any part thereof that diligent inquiry would reveal and each Borrower hereby agrees that the Agent shall not have any duty to advise any Borrower of information known to the Agent regarding such condition or any such circumstances.
(iv) Each U.S. Borrower hereby agrees that any Debt of any other U.S. Borrower now or hereafter owing to such U.S. Borrower is hereby subordinated to all of the Guaranteed Obligations, whether heretofore, now or hereafter created (the “Subordinated Debt”), and that without the prior consent of the Agent, the Subordinated Debt shall not be paid in whole or in part until the Guaranteed Obligations have been paid in full, the commitments of the Lenders to extend credit under the Credit Agreement have been terminated, no Letters of Credit are outstanding and the Credit Agreement has been terminated and is of no further force or effect, except that payments of principal and interest on the Subordinated Debt shall be permitted so long as no Event of Default shall have occurred and be continuing to the extent such payments would not render such U.S. Borrower incapable of performing the Guaranteed Obligations. No U.S. Borrower will accept any payment of or on account of any Subordinated Debt at any time in contravention of the foregoing. At the request of the Agent, each U.S. Borrower shall pay to the Agent all or any part of the Subordinated Debt and any amount so paid to the Agent shall be applied to payment of the Guaranteed Obligations. Each payment on the Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by the relevant U.S. Borrower as trustee for the Agent and shall be paid over to the Agent immediately on account of the Guaranteed Obligations, but without otherwise affecting in any manner such U.S. Borrower’s liability under any of the provisions of this Agreement. Each U.S. Borrower agrees to file all claims against any other U.S. Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of any Subordinated Debt, and the Agent shall be entitled to all of such U.S. Borrower’s right thereunder. If for any reason the relevant U.S. Borrower fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, the Agent, as such U.S. Borrower’s attorney-in-fact, is hereby authorized to do so in such U.S. Borrower’s name or, in the Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, each U.S. Borrower hereby assigns to the Agent all such U.S. Borrower’s rights to any payments or distributions to which such U.S. Borrower otherwise would be entitled. If the amount so paid is greater than such U.S. Borrower’s liability hereunder, the Agent will pay the excess amount to the party entitled thereto. In addition, until all the Guaranteed Obligations have been paid in full in cash, each U.S. Borrower hereby appoints the Agent as its attorney-in-fact to exercise all of such U.S. Borrower’s voting rights in connection with any bankruptcy proceeding or any plan for the reorganization of any other U.S. Borrower.
Appears in 1 contract
Samples: Credit Agreement (Ann Inc.)
Waivers; Other Agreements. The Guaranteed Party is hereby authorized, without notice to or demand upon Guarantorsany Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors any Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time to:
(i) waive or otherwise consent to noncompliance with any provision of the Note or MortgageCredit Document, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker Borrower or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by MakerBorrower;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or release any such additional security or collateral;
(iv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party may determine in its sole discretion;
(v) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee therefore, in any manner;
(vi) add, release or substitute any one or more other guarantors, makers borrowers or endorsers of the Guaranteed Obligations and otherwise deal with Maker Borrower or any other guarantor as the Guaranteed Party may elect in its sole discretion; and
(vii) apply any and all payments or recoveries from MakerBorrower, Guarantors any Guarantor or from any other guarantor of the Guaranteed Obligations, to such of the Guaranteed Obligations as the Guaranteed Party in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others.
Appears in 1 contract
Waivers; Other Agreements. The Guaranteed Party (a) Subject to the terms hereof and of the other Loan Documents, the Agent is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or otherwise modify, amend, restate or change the terms of any promissory note or other agreement, document or instrument (including the Credit Agreement and the other Loan Documents) now or hereafter executed by any Borrower and delivered to the Agent, including, without limitation, any increase or decrease of the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Note or MortgageGuaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including the Credit Agreement and the other Loan Documents) now or hereafter executed by Maker or any other person Borrower and delivered to the Guaranteed PartyAgent;
(iiiii) accept partial payments on the Guaranteed Obligations by MakerObligations;
(iiiiv) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this GuaranteeObligations, or for the payment of any other guarantees guaranties of the Guaranteed ObligationsObligations or other liabilities of any Borrower, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker enforce its rights under the Loan Agreements against any Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Borrower, Guarantors or from any other guarantor of the Guaranteed Obligationsguarantor, to such maker or endorser of the Guaranteed Obligations as or from the Guarantor to the Guaranteed Party Obligations to the Obligations in its sole discretion may determinesuch order as provided in Section 3.5 of the Credit Agreement, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Agent as the Agent in its sole discretion, may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund at any time, at the Agent’s sole discretion, any payment received by the Agent in respect of any Guaranteed Obligations, and payment to the Agent of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any release or termination of any collateral by virtue thereof) by the Agent, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any collateral so released or terminated shall be reinstated with respect to such obligations); even if any right of reimbursement or subrogation or other right or remedy of the Guarantor is extinguished, affected or impaired by any of the foregoing (including, without limitation, any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations which impairs any subrogation, reimbursement or other right of Guarantor).
(b) The Guarantor hereby agrees that this Guaranty is a continuing, unconditional guaranty of payment and not of collection and that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of the Guaranteed Obligations or of any promissory note or other document (including, without limitation, the Credit Agreement) evidencing all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations from the Borrower or any other guarantor or other action to enforce the same;
(iii) failure by the Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations or any other guaranty therefor;
(iv) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code;
(v) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the Agent’s claim(s) for repayment of the Guaranteed Obligations;
(vi) any use of cash collateral under Section 363 of the Bankruptcy Code;
(vii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(viii) the avoidance of any lien in favor of the Agent for any reason;
(ix) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Borrower, the Guarantor or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(x) failure by the Agent to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xi) any action taken by the Agent that is authorized by this Guaranty; or
(xii) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(c) The Guarantor hereby waives:
(i) any requirements of diligence or promptness on the part of the Agent;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations;
(iii) notices (A) of nonperformance, (B) of acceptance of this Guaranty, (C) of default in respect of the Guaranteed Obligations, (D) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to any Borrower or otherwise, (E) that the principal amount, or any portion thereof, and/or any interest on any instrument or document evidencing all or any part of the Guaranteed Obligations is due, (F) of any and all proceedings to collect from any Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (G) of exchange, sale, surrender or other handling of any security or collateral given to the Agent to secure payment of the Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Agent to (a) proceed first against any Borrower, or any other person whatsoever, (b) proceed against or exhaust any security given to or held by the Agent in connection with the Guaranteed Obligations, or (c) pursue any other remedy in the Agent’s power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of any Borrower, (b) the cessation from any cause whatsoever of the liability of any Borrower, (c) any act or omission of the Agent or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of any Borrower or any security given to or held by the Agent in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Guaranteed Obligations or the Guarantor’s liability hereunder or the enforcement hereof. In connection with the foregoing, the Guarantor covenants that this Guaranty shall not be discharged, except by complete performance of the obligations contained herein.
(d) The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrowers, of any and all endorsers and/or other guarantors of any instrument or document evidencing all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations or any part thereof that diligent inquiry would reveal and the Guarantor hereby agrees that the Agent shall not have any duty to advise the Guarantor of information known to the Agent regarding such condition or any such circumstances.
(e) The Guarantor hereby agrees that (i) until such time as the Guaranteed Obligations have been paid in full, the commitments of the Lenders to extend credit under the Credit Agreement have been terminated, no Letters of Credit exist that have not been Fully Supported, and the Credit Agreement has been terminated and is of no further force or effect (the “Satisfaction Date”) and (ii) during any period that the Guaranteed Obligations may arise or be reinstated after the Satisfaction Date whether pursuant Section 4(h) below or otherwise, the Guarantor agrees that it shall not exercise any claim or other rights which it may now or hereafter acquire against any Borrower that arises from the existence, payment, performance or enforcement of the Guarantor’s obligations or liabilities under this Guaranty, including any right of subrogation, reimbursement, exoneration or indemnification, any right to participate in any claim or remedy against any Borrower or any collateral which the Agent or any Lender now has or hereafter acquires an interest, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by setoff or in any manner, payment or security on account of such claim or other rights. If any amount shall be paid to the Guarantor in violation of the preceding sentence, such amount shall be deemed to have been paid for the benefit of the Agent and the Lenders, and shall forthwith be paid to the Agent to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, as the Agent may determine.
(f) The Guarantor hereby agrees that any indebtedness of any Borrower now or hereafter owing to the Guarantor is hereby subordinated to all of the Guaranteed Obligations, whether heretofore, now or hereafter created (the “Subordinated Debt”), and that without the prior consent of the Agent, the Subordinated Debt shall not be paid in whole or in part until the Satisfaction Date shall have occurred, except that payments of principal and interest on the ____ Subordinated Debt shall be permitted so long as no Event of Default shall have occurred and be continuing to the extent such payments would not render such Borrower incapable of performing the Guaranteed Obligations. The Guarantor will not accept any payment of or on account of any Subordinated Debt at any time in contravention of the foregoing. At the request of the Agent, the applicable Borrower shall pay to the Agent all or any part of the Subordinated Debt and any amount so paid to the Agent shall be applied to payment of the Guaranteed Obligations. Each payment on the Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by Guarantor as trustee for the Agent and shall be paid over to the Agent immediately on account of the Guaranteed Obligations, but without otherwise affecting in any manner the Guarantor’s liability under any of the provisions of this Guaranty. The Guarantor agrees to file all claims against the applicable Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of any Subordinated Debt, and the Agent shall be entitled to all of the Guarantor’s right thereunder. If for any reason the Guarantor fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, the Agent, as the Guarantor’s attorney-in-fact, is hereby authorized to do so in the Guarantor’s name or, in the Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, the Guarantor hereby assigns to the Agent all Guarantor’s rights to any payments or distributions to which the Guarantor otherwise would be entitled. If the amount so paid is greater than the Guarantor’s liability hereunder, the Agent will pay the excess amount to the party entitled thereto. In addition, until the Guaranteed Obligations have been paid in full, the Guarantor hereby appoints Agent as its attorney-in-fact to exercise all of the Guarantor’s voting rights in connection with any bankruptcy proceeding or any plan for the reorganization of such Borrower.
(g) The Guarantor shall comply with all covenants stated to be applicable to it under the Credit Agreement. The Guarantor shall also cause each Borrower to comply with all covenants applicable to such Borrower under the Credit Agreement.
(h) The Guarantor agrees that, if any payment made by any Borrower or any other person and applied to the Guaranteed Obligations is at any time annulled, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by the Agent, any of the Lenders and any Letter of Credit Issuer to any Borrower or the Guarantor, its estate, trustee, receiver or any other party, including, without limitation, any guarantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the Guarantor’s liability under this Guaranty (and any lien, security interest or other collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made, or, if prior thereto this Guaranty shall have been cancelled or surrendered (and if any lien, security interest or other collateral securing any Guarantor’s liability under this Guaranty shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such lien, security interest or other collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor under this Guaranty in ___ respect of the amount of such payment (or any lien, security interest or other collateral securing such obligation).
Appears in 1 contract
Samples: Parent Guaranty (Ann Inc.)
Waivers; Other Agreements. The Guaranteed Party (i) Subject to the terms hereof, the Agent is hereby authorizedauthorized by the Borrowers (subject to any additional authorization required by the Lenders or the Required Lenders), without notice to or demand upon Guarantorsany Borrower, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors any Borrower hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(iA) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including this Agreement and the other Loan Documents) now or hereafter executed by any Borrower and delivered to the Agent, including, without limitation, any increase or decrease of the rate of interest thereon;
(B) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Note or MortgageGuaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including this Agreement and the other Loan Documents) now or hereafter executed by Maker or any other person Borrower and delivered to the Guaranteed PartyAgent;
(iiC) accept partial payments on the Guaranteed Obligations by MakerObligations;
(iiiD) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this GuaranteeObligations, or for the payment of any other guarantees guaranties of the Guaranteed ObligationsObligations or other liabilities of any Borrower, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivE) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Agent may determine in its sole discretion;
(vF) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforeguaranty therefor, in any manner;
(viG) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker enforce its rights under the Loan Documents against any Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Agent may elect in its sole discretion; and;
(viiH) apply any and all payments or recoveries from Makerany Borrower, Guarantors or from any other guarantor of the Guaranteed Obligationsguarantor, to such maker or endorser of the Guaranteed Obligations to the Obligations in such order as the Guaranteed Party provided in its sole discretion may determineSection 3.8 hereof, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(I) apply any and all payments or recoveries from any Borrower or any other guarantor, maker or endorser of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Agent as the Agent in its sole discretion, may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(J) refund at any time, at the Agent's sole discretion, any payment received by the Agent in respect of any Guaranteed Obligations, and payment to the Agent of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Agreement shall have been cancelled or surrendered (or any release or termination of any collateral by virtue thereof) by the Agent, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any Borrower hereunder in respect of the amount so refunded (and any collateral so released or terminated shall be reinstated with respect to such obligations); even if any right of reimbursement or subrogation or other right or remedy of any Borrower is extinguished, affected or impaired by any of the foregoing (including, without limitation, any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations which impairs any subrogation, reimbursement or other right of such Borrower). The foregoing provisions are intended to eliminate suretyship defenses and are not intended to affect the operation of Section 11.1.
(ii) Each Borrower hereby waives:
(A) any requirements of diligence or promptness on the part of the Agent;
(B) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations;
(C) notices (I) of nonperformance, (II) of acceptance of this Agreement, (III) of default in respect of the Guaranteed Obligations, (IV) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to any Borrower or otherwise, (V) that the principal amount, or any portion thereof, and/or any interest on any instrument or document evidencing all or any part of the Guaranteed Obligations is due, (VI) of any and all proceedings to collect from any Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations, or from anyone else, and (VII) of exchange, sale, surrender or other handling of any security or collateral given to the Agent to secure payment of the Guaranteed Obligations or any guaranty therefor;
(D) any right to require the Agent to (I) proceed first against any other Borrower, or any other person whatsoever, (II) proceed against or exhaust any security given to or held by the Agent in connection with the Guaranteed Obligations, or (III) pursue any other remedy in the Agent's power whatsoever;
(E) any defense arising by reason of (I) any disability or other defense of any Borrower, (II) the cessation from any cause whatsoever of the liability of any Borrower, (III) any act or omission of the Agent or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of any Borrower or any security given to or held by the Agent in connection with the Guaranteed Obligations;
(F) any and all other suretyship defenses under applicable law;
(G) the benefit of any statute of limitations affecting the Guaranteed Obligations or such Borrower's liability hereunder or the enforcement hereof.
(H) in connection with the foregoing, each Borrower covenants that this Agreement shall not be discharged, except by complete performance of the obligations contained herein.
(iii) Each Borrower hereby assumes responsibility for keeping itself informed of the financial condition of each other Borrower, of any and all endorsers and/or other guarantors of any instrument or document evidencing all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations or any part thereof that diligent inquiry would reveal and each Borrower hereby agrees that the Agent shall not have any duty to advise any Borrower of information known to the Agent regarding such condition or any such circumstances.
(iv) Each Borrower hereby agrees that any indebtedness of any Borrower now or hereafter owing to such Borrower is hereby subordinated to all of the Guaranteed Obligations, whether heretofore, now or hereafter created (the "Subordinated Debt"), and that without the prior consent of the Agent, the Subordinated Debt shall not be paid in whole or in part until the Guaranteed Obligations have been paid in full, the commitments of the Lenders to extend credit under the Credit Agreement have been terminated, no Letters of Credit are outstanding and the Credit Agreement has been terminated and is of no further force or effect, except that payments of principal and interest on the Subordinated Debt shall be permitted so long as no Default or Event of Default shall have occurred and be continuing to the extent such payments would not render such Borrower incapable of performing the Guaranteed Obligations. No Borrower will accept any payment of or on account of any Subordinated Debt at any time in contravention of the foregoing. At the request of the Agent, each Borrower shall pay to the Agent all or any part of the Subordinated Debt and any amount so paid to the Agent shall be applied to payment of the Guaranteed Obligations. Each payment on the Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by the relevant Borrower as trustee for the Agent and shall be paid over to the Agent immediately on account of the Guaranteed Obligations, but without otherwise affecting in any manner such Borrower's liability under any of the provisions of this Agreement. Each Borrower agrees to file all claims against any other Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of any Subordinated Debt, and the Agent shall be entitled to all of such Borrower's right thereunder. If for any reason the relevant Borrower fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, the Agent, as such Borrower's attorney-in-fact, is hereby authorized to do so in such Borrower's name or, in the Agent's discretion, to assign such claim to and cause proof of claim to be filed in the name of the Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, each Borrower hereby assigns to the Agent all such Borrower's rights to any payments or distributions to which such Borrower otherwise would be entitled. If the amount so paid is greater than such Borrower's liability hereunder, the Agent will pay the excess amount to the party entitled thereto. In addition, each Borrower hereby appoints the Agent as its attorney-in-fact to exercise all of such Borrower's voting rights in connection with any bankruptcy proceeding or any plan for the reorganization of any other Borrower.
Appears in 1 contract
Waivers; Other Agreements. A. The Guaranteed Party Lender is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or any portion thereof, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the other Financing Agreements) now or hereafter executed by the Borrower and delivered to the Lender, including, without limitation, any increase or decrease of the principal amount thereof or the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any agreement, document or instrument (including, without limitation, the Note Loan Agreement and the other Financing Agreements) evidencing or Mortgagein respect of the Guaranteed Obligations, or any part thereof, now or hereafter executed by the Borrower and delivered to the Lender;
(iii) accept partial payments on the Guaranteed Obligations;
(iv) receive, take and hold security or collateral for the payment or performance of the Guaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by Maker;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment performance of any other guarantees guaranties of all or any part of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Lender may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations Obligations, or any part thereof, or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations Obligations, or any part thereof, or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of all or any part of the Guaranteed Obligations and otherwise deal with Maker the Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Lender may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Guarantor, Guarantors from the Borrower or from any other guarantor guarantor, maker or endorser of the Guaranteed Obligations, to such all or any part of the Guaranteed Obligations to the Guaranteed Obligations in such order as the Guaranteed Party Lender in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of all or any part of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to Lender, as Lender in its sole discretion may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund to Borrower or any Person making any payment (or its estate, a trustee or receiver) at any time, at the Lender's sole discretion, any payment received by Lender in respect of any Guaranteed Obligations, and payment to the Lender of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any lien, security interest or other collateral shall have been released or terminated by virtue thereof), and such prior cancellation or surrender (or release or termination) shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any lien, security interest or other collateral so released or terminated shall be reinstated with respect to such obligations).
B. The Guarantor hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of all or any part of the Guaranteed Obligations or of any promissory note or other agreement, document or instrument (including, without limitation, the Loan Agreement and the Financing Agreements) evidencing or in respect of all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for all or any part of the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations, or any portion thereof, from the Borrower or any other guarantor or other action to enforce the same;
(iii) any failure by the Lender to acquire, perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for all or any part of the Guaranteed Obligations or any guaranty therefor;
(iv) any election by the Lender in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. ss. 101 et seq.) (the "Bankruptcy Code");
(v) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under the Bankruptcy Code;
(vi) the disallowance, under the Bankruptcy Code, of all or any portion of the Lender's claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under the Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of the Lender for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, the Guarantor or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting or accelerating, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) any failure by the Lender to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by the Lender that is authorized by this Guaranty;
(xiii) any election by the Lender under Section 9-501(4) of the Uniform Commercial Code as enacted in any relevant jurisdiction as to any security for the Guaranteed Obligations or any guaranty of all or any part of the Guaranteed Obligations; or
(xiv) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
C. Until the Guaranteed Obligations shall have been paid and performed in full and all of the Financing Agreements shall have been terminated, the Guarantor shall have no right of subrogation and hereby waives any right to enforce any remedy which the Lender now has or may hereafter have against the Borrower or any guarantor of all or any part of the Guaranteed Obligations, and the Guarantor hereby waives any benefit of, and any right to participate in, any security or collateral given to the Lender to secure payment or performance of any of the Guaranteed Obligations or any other liability of the Borrower to the Lender. The Guarantor further agrees that any and all claims of the Guarantor against the Borrower or any guarantor of all or any part of the Guaranteed Obligations, or against any of their respective properties, arising by reason of this Guaranty, including without limitation by reason of any payment by the Guarantor to the Lender pursuant to the provisions hereof, shall be subordinate and subject in right of payment to the prior payment, in full, of all principal and interest, all reasonable costs of collection (including attorneys' and paralegals' fees) and payment and performance in full of any other liabilities or obligations to the Lender by the Borrower, including without limitation the Liabilities, which may arise either with respect to or on any Financing Agreement or any other note, instrument, document, item, agreement or other writing heretofore, now or hereafter delivered to the Lender. The Guarantor further waives:
(i) any requirements of diligence or promptness on the part of the Lender;
(ii) presentment, demand for payment or performance and protest and notice of protest with respect to the Guaranteed Obligations or any guaranty with respect thereto;
(iii) notices (a) of nonperformance, (b) of acceptance of this Guaranty, (c) of default in respect of the Guaranteed Obligations, (d) of the existence, creation or incurrence of new or additional indebtedness, arising either from additional loans extended to the Borrower or otherwise, (e) that the principal amount, or any portion thereof, and/or any interest on any document or instrument evidencing all or any part of the Guaranteed Obligations is due, (f) of any and all proceedings to collect from the Borrower, any maker, endorser or any other guarantor of all or any part of the Guaranteed Obligations or from anyone else, and (g) of exchange, sale, surrender or other handling of any security or collateral given to the Lender to secure payment of the Guaranteed Obligations or any guaranty therefor;
(iv) any right to require the Lender to (a) proceed first against the Borrower or any other Person whatsoever, (b) proceed against or exhaust any security given to or held by the Lender in connection with the Guaranteed Obligations, or (c) pursue any other remedy in the Lender's power whatsoever;
(v) any defense arising by reason of (a) any disability or other defense of the Borrower, (b) the cessation from any cause whatsoever of the liability of the Borrower, (c) any act or omission of the Lender or others which directly or indirectly, by operation of law or otherwise, results in or aids the discharge or release of the Borrower or any security given to or held by the Lender in connection with the Guaranteed Obligations;
(vi) any and all other suretyship defenses under applicable law; and
(vii) the benefit of any statute of limitations affecting the Guaranteed Obligations or the Guarantor's liability hereunder or the enforcement hereof. In connection with the foregoing, the Guarantor covenants that this Guaranty shall not be discharged, except by complete performance of the obligations contained herein and the payment and discharge in full of all of the Liabilities and termination of all Financing Agreements (including without limitation any commitments with respect to the Liabilities). All waivers granted by the Guarantor hereunder shall be unconditional and irrevocable irrespective of whether the Guaranteed Obligations have been paid in full by the Guarantor or any other party.
D. The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, of any and all endorsers and/or other guarantors of all or any part of the Guaranteed Obligations and of all other circumstances bearing upon the risk of nonpayment and nonperformance of the Guaranteed Obligations, or any part thereof, and the Guarantor hereby agrees that the Lender shall not have any duty to advise the Guarantor of information known to the Lender regarding such condition or any such circumstances. In the event the Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, the Lender shall not have any obligation (i) to undertake any investigation, whether or not a part of its regular business routine, (ii) to disclose any information which the Lender wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information of the Guarantor.
E. The Guarantor shall not take any action which would, directly or indirectly, result in an Event of Default or Default under the Loan Agreement.
Appears in 1 contract
Samples: Guaranty Agreement (Allied Digital Technologies Corp)
Waivers; Other Agreements. The Guaranteed Party is hereby authorized, without notice to or demand upon Guarantorsany Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors any Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time to:
(i) waive or otherwise consent to noncompliance with any provision of the Note or MortgageDCP I Credit Document, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations now or hereafter executed by Maker Borrower or any other person and delivered to the Guaranteed Party;
(ii) accept partial payments on the Guaranteed Obligations by MakerBorrower;
(iii) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or release any such additional security or collateral;
(iv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party may determine in its sole discretion;
(v) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforetherefor, in any manner;
(vi) add, release or substitute any one or more other guarantors, makers borrowers or endorsers of the Guaranteed Obligations and otherwise deal with Maker Borrower or any other guarantor as the Guaranteed Party may elect in its sole discretion; and
(vii) apply any and all payments or recoveries from MakerBorrower, Guarantors any Guarantor or from any other guarantor of the Guaranteed Obligations, to such of the Guaranteed Obligations as the Guaranteed Party in its sole discretion may determine, whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Healthpeak Properties, Inc.)
Waivers; Other Agreements. (a) The Guaranteed Party Administrative Agent is hereby authorized, without notice to or demand upon Guarantorsthe Guarantor, which notice or demand is expressly waived hereby, and without discharging or otherwise affecting the enforceability of the obligations of the Guarantors Guarantor hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time time, to:
(i) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including the Credit Agreement and the other Loan Documents) now or hereafter executed by the Borrower and delivered to the Administrative Agent, including, without limitation, any increase or decrease of the rate of interest thereon;
(ii) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Note or MortgageGuaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including the Credit Agreement and the other Loan Documents) now or hereafter executed by Maker or any other person the Borrower and delivered to the Guaranteed PartyAdministrative Agent;
(iiiii) accept partial payments on the Guaranteed Obligations by MakerObligations;
(iiiiv) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or for the payment of this GuaranteeObligations, or for the payment of any other guarantees guaranties of the Guaranteed ObligationsObligations or other liabilities of the Borrower, and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or and release any such additional security or collateral;
(ivv) apply any and all such security or collateral and direct the order or manner of sale thereof as the Guaranteed Party Administrative Agent may determine in its sole discretion;
(vvi) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any Mortgage or any other security or collateral for the Guaranteed Obligations or any other guarantee thereforeguaranty therefor, in any manner;
(vivii) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations and otherwise deal with Maker the Borrower or any other guarantor guarantor, maker or endorser as the Guaranteed Party Administrative Agent may elect in its sole discretion; and;
(viiviii) apply any and all payments or recoveries from Makerthe Borrower, Guarantors or from any other guarantor of the Guaranteed Obligationsguarantor, to such maker or endorser of the Guaranteed Obligations as or from the Guarantor to the Guaranteed Party Obligations to the Obligations in its sole discretion may determinesuch order as provided in Section 2.05(b) of the Credit Agreement, whether such Guaranteed -------------- ========================================================================= -4- Obligations are secured or unsecured or guaranteed or not guaranteed by others;
(ix) apply any and all payments or recoveries from the Guarantor or any other guarantor, maker or endorser of the Guaranteed Obligations or sums realized from security furnished by any of them upon any of their indebtedness or obligations to the Administrative Agent as the Administrative Agent in its sole discretion, may determine, whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and
(x) refund at any time, at the Administrative Agent's sole discretion, any payment received by the Administrative Agent in respect of any Guaranteed Obligations, and payment to the Administrative Agent of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any release or termination of any collateral by virtue thereof) by the Administrative Agent, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any collateral so released or terminated shall be reinstated with respect to such obligations); even if any right of reimbursement or subrogation or other right or remedy of the Guarantor is extinguished, affected or impaired by any of the foregoing (including, without limitation, any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations which impairs any subrogation, reimbursement or other right of Guarantor).
(b) The Guarantor hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of:
(i) the invalidity or unenforceability of any security for or other guaranty of the Guaranteed Obligations or of any promissory note or other document (including, without limitation, the Credit Agreement) evidencing all or any part of the Guaranteed Obligations, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any other guaranty therefor;
(ii) the absence of any attempt to collect the Guaranteed Obligations from the Borrower or any other guarantor or other action to enforce the same;
(iii) failure by the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations or any other guaranty therefor;
(iv) the Administrative Agent's election, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the application of --------------- Section 1111(b)(2) of the Bankruptcy Code; ------------------ ==============================================================================
(v) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; -----------
(vi) the disallowance, under Section 502 of the Bankruptcy ------------ Code, of all or any portion of the Administrative Agent's claim(s) for repayment of the Guaranteed Obligations;
(vii) any use of cash collateral under Section 363 of the ----------- Bankruptcy Code;
(viii) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;
(ix) the avoidance of any lien in favor of the Administrative Agent for any reason;
(x) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against Borrower, the Guarantor or any other guarantor, maker or endorser, including without limitation, any discharge of, or bar or stay against collecting, all or any of the Guaranteed Obligations (or any interest thereon) in or as a result of any such proceeding;
(xi) failure by the Administrative Agent to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(xii) any action taken by the Administrative Agent that is authorized by this Guaranty; (xiii) any election by the Administrative Agent under Section 9-501(4) of the Uniform Commercial Code as enacted in any ---------------- relevant jurisdiction (the "Code") as to any security for the ---- Guaranteed Obligations or any guaranty of the Guaranteed Obligations; or
Appears in 1 contract
Samples: Guaranty (Taylor Ann Stores Corp)
