Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due and (ii) the dissolution, bankruptcy and/or insolvency of any Guarantor. (b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower. (c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto. (d) In the event any payment by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment of any amount payable by Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 4 contracts
Sources: Limited Recourse Guaranty, Limited Recourse Guaranty (Morgans Hotel Group Co.), Limited Recourse Guaranty (Morgans Hotel Group Co.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder Default: (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when within five (5) Business Days after such indebtedness becomes due and (ii) subject to the cure rights contained in Section 10.1(f) of the Loan Agreement, the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence If all or any part of any Event of Default hereunder, the Guaranteed Recourse Obligations of BorrowerBorrower shall not be punctually paid by Borrower when due, for purposes of this Guarantywhether, shall be deemed immediately due and payable at the election of Lender. demand, maturity, acceleration or otherwise, Guarantor shall, on demandfollowing receipt of written demand by Lender, pay the Guaranteed Recourse Obligations of Borrower to LenderLender from time to time. It Except as may be required by applicable law, it shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment of any Guaranteed Recourse Obligation of Borrower by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by any Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment by Borrower of any amount payable by Guaranteed Recourse Obligation of Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on upon written demand by Lender.
Appears in 3 contracts
Sources: Mezzanine Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder hereunder: (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due under the Loan Agreement (subject to any applicable notice and cure periods expressly set forth therein), and (ii) the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on demanddemand following such event, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty as Guarantor or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any attorneys’ fees, costs and expenses actually paid or incurred by Lender in connection with any such event. If acceleration of the time for payment of any amount payable by Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 3 contracts
Sources: Limited Recourse Guaranty, Limited Recourse Guaranty (American Realty Capital New York City REIT, Inc.), Limited Recourse Guaranty (American Realty Capital New York City REIT, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder Default: (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due and (ii) subject to the cure rights contained in Section 10.1(f) of the Loan Agreement, the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on upon written demand, pay the Guaranteed Recourse Obligations of Borrower to LenderLender from time to time. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment of any Guaranteed Recourse Obligation of Borrower by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment by Borrower of any amount payable by Guaranteed Recourse Obligation of Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on upon written demand by Lender.
Appears in 2 contracts
Sources: Mezzanine Loan Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Mezzanine Loan Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due due, which default continues for five (5) Business Days following notice thereof to Guarantor and (ii) the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender, provided the same are due and payable under the Loan Agreement. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to LenderLender as and when they become due. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment by Borrower or any other Person on account of the Guaranteed Recourse Obligations of Borrower to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any Borrower or such other party, such payment by Borrower or any such other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another Borrower or such other Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any reasonable attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment of any amount payable by Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 2 contracts
Sources: Limited Recourse Guaranty (American Finance Trust, Inc), Limited Recourse Guaranty (American Finance Trust, Inc)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder Default: (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when within five (5) Business Days after such indebtedness becomes due and (ii) subject to the cure rights contained in Section 10.1(f) of the Loan Agreement, the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence If all or any part of any Event of Default hereunder, the Guaranteed Recourse Obligations of BorrowerBorrower shall not be punctually paid by Borrower when due, for purposes of this Guarantywhether, shall be deemed immediately due and payable at the election of Lender. demand, maturity, acceleration or otherwise, Guarantor shall, on following written demand, pay the Guaranteed Recourse Obligations of Borrower to LenderLender from time to time. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment of any Guaranteed Recourse Obligation of Borrower by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by any Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment by Borrower of any amount payable by Guaranteed Recourse Obligation of Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on upon written demand by Lender.
Appears in 2 contracts
Sources: Mezzanine Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder Default: (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due and (ii) subject to the cure rights contained in Section 10.1(f) of the Loan Agreement, the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on upon written demand, pay the Guaranteed Recourse Obligations of Borrower to LenderAdministrative Agent for the Benefit of Lenders from time to time. It shall not be necessary for LenderAdministrative Agent, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Administrative Agent and/or Lender against any party hereto.
(d) In the event any payment of any Guaranteed Recourse Obligation of Borrower by Borrower or any other Person to Lender Administrative Agent for the benefit of Lenders is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is Administrative Agent and/or Lenders are required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender Administrative Agent for the benefit of Lenders shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent and/or any Lender or paid by Administrative Agent and/or any Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment by Borrower of any amount payable by Guaranteed Recourse Obligation of Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on upon written demand by LenderAdministrative Agent.
Appears in 2 contracts
Sources: Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that that, in addition to any specific events set forth herein as constituting an “Event of Default” hereunder, each of the following shall constitute Events of Default hereunder (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of BorrowerObligations, or any part thereof, when such indebtedness becomes due and (ii) the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence and during the continuation of any Event of Default hereunder, the Guaranteed Recourse Obligations of BorrowerObligations, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of BorrowerObligations.
(c) Notwithstanding anything to the contrary in the Loan Documents, Guarantor agrees that (i) any and all payments received by Lender from Borrower or the collateral for the Loan (including, without limitation, by sale of the Property or ownership interests in Borrower) shall be deemed applied first to that portion of the Debt that is not included in the Guaranteed Obligations, until all such payments have been applied to such unguaranteed portion of the Debt, and thereafter on account of the Guaranteed Obligations, in each case in such order and priority as Lender may from time to time elect, and (ii) any and all payments received by ▇▇▇▇▇▇ from Guarantor may be applied on account of the Debt in such order and priority as Lender may from time to time elect.
(d) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of BorrowerObligations, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(de) In the event any payment by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of BorrowerObligations), and any interest paid by Lender ▇▇▇▇▇▇ and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment of any amount payable by Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on demand by Lender▇▇▇▇▇▇.
Appears in 1 contract
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees guarantees that each of the following shall constitute Events of Default hereunder (i) Guaranteed Obligations will be paid strictly in accordance with the occurrence of a default by Guarantor in payment terms of the Guaranteed Recourse Agreements, regardless of any law, regulation, or order of any governmental authority now or hereafter in effect. ▇▇▇▇▇▇▇▇▇ agrees that neither Guaranteed Party’s rights or remedies nor Guarantor’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by, and Guarantor hereby waives any defenses to enforcement it may have (now or in the future) by reach of, or with respect to, the following:
i. any illegality or lack of validity or enforceability of, or defect or deficiency in, any Obligation or any Agreement or any related agreement or instrument for any reason or circumstance, including, without limitation, because Market Participant has any valid defense, claim or offset with respect thereto or because Market Participant’s obligation ceases to exist by operation of law; and Guarantor acknowledges and agrees that Guarantor’s liability under this Guaranty is not conditioned upon the legality, validity or enforceability of the Agreements (or any one of them) or the Obligations and that Guarantor shall remain liable hereon regardless of Borrowerwhether Market Participant or any other Person be found not liable on the Obligations, or any part thereof, when such indebtedness becomes due for any reason (and (regardless of any joinder of Market Participant or any other party in any action to obtain payment or performance of any or all of the Obligations);
ii) . the dissolutionlack of legal existence of the Market Participant or any other Person or lack of legal obligation to discharge all or any portion of the Obligations by the Market Participant or any other Person for any reason whatsoever, including, without limitation, in any insolvency, bankruptcy and/or insolvency or reorganization of any Person;
iii. either with or without notice to or consent of Guarantor.
(b) Upon , any renewal, extension, modification, supplement, subordination or rearrangement of the occurrence terms of any Event or all of Default hereunderthe Obligations and/or any of the Agreements, including material alterations of the Guaranteed Recourse Obligations terms of Borrower, for purposes of this Guaranty, shall be deemed immediately payment (including changes in due date(s) and payable at the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (iinterest rate(s)) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower performance or any others other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Agreements or any other guaranty of any or all of the Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Guaranteed Party to Market Participant or any other Person at any time liable for the payment or performance of any or all of the Guaranteed Recourse Obligations under any of Borrower the Agreements;
iv. any taking, accepting, substitution, release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any part thereof in failure to create or perfect any action to enforce this Guaranty and/or (iv) resort to lien or security interest with respect to, or any other means of obtaining payment dealings with, any collateral or performance security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Recourse Obligations, or any impairment of Guarantor’s recourse against any Person or collateral;
v. any taking, accepting, impairment, amendment, waiver, or other modification of any guaranty, for all or any portion of the Obligations or the failure of Borrower.
(c) Suit may be brought any other Person to execute or demand may be made against all parties who have signed deliver this Guaranty or any other guaranty covering or agreement, or the release or reduction of liability of any Person or surety, with respect to the Obligations;
vi. any default, failure, or delay, willful or otherwise, in the performance of all or any part portion of the Obligations;
vii. whether express or by operation of law, any partial release of the liability of Guarantor hereunder (except to the extent expressly so released by Guaranteed Recourse Obligations Party in writing) or any complete or partial release of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment by Borrower Market Participant or any other Person to Lender is held to constitute a preferenceliable, fraudulent transfer directly or indirectly, for the payment or performance of any or all of the Obligations;
viii. any change, restructuring, or termination of the corporate structure, ownership, or existence of the Market Participant, Guarantor or any Other Guarantor (as defined below) or any of their subsidiaries or affiliates, or any (voluntary or involuntary) receivership, insolvency, bankruptcy, reorganization, assignment for the benefit of creditors, or other voidable payment similar proceeding affecting the Market Participant, any Other Guarantor or their respective assets, or any resulting release or discharge of any Obligation;
ix. any failure of Guaranteed Party to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Obligations or any part thereof, or of any Agreement or other guaranty, or of any release of or change in any security, or of the occurrence or existence of any default, or of any other action taken or refrained from being taken by Guaranteed Party against Market Participant, any Other Guarantor or any security or other recourse, or of any new agreement between Guaranteed Party and Market Participant or any Other Guarantor, it being understood that Guaranteed Party shall not be required to give Guarantor any notice of any kind under any bankruptcycircumstances with respect to or in connection with the Obligations (including, insolvency or similar lawwithout limitation, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other partyGuaranteed Obligations), such payment by Borrower the Agreements or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply toguaranty, any and all amounts so refunded rights to notice Guarantor may have otherwise had being hereby waived by Lender Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding Market Participant and any Other Guarantor, including any changes in the business or paid by Lender financial condition of Market Participant, and Guarantor acknowledges and agrees that Guaranteed Party shall have no duty to another Person notify Guarantor of any information which Guaranteed Party may have concerning Market Participant or any Other Guarantor; x. any neglect, lack of diligence, delay, omission, failure, or refusal of Guaranteed Party to take, exercise, enforce or prosecute (which amounts shall constitute part or in taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action with respect to any of the Guaranteed Recourse Obligations of Borrower)Obligations, and or to foreclose or take or prosecute any interest paid by Lender and action to foreclose (or in foreclosing or taking or prosecuting any attorneys’ feesaction to foreclose) upon any security therefor, costs and expenses paid or incurred by Lender to exercise (or in exercising) any other right or power with respect to any security therefor, or take, exercise, enforce or prosecute (or in taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action in connection with any such event. If acceleration Agreement, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the time for payment Obligations;
xi. any waiver by Guaranteed Party of any amount payable right or remedy; or any waiver by Borrower Guaranteed Party of the Market Participant’s performance of any of the Obligations or the Market Participant’s or any Other Guarantor’s default under any Loan Document of the Agreements or Other Guarantor under any other guaranty;
xii. the existence of any claim, counterclaim, set-off or other right that Guarantor may at any time have against Guaranteed Party, Market Participant, any Other Guarantor or any other Person, whether or not arising in connection with this Guaranty, any of the Agreements or any other guaranty;
xiii. any transfer, assignment or mortgaging by the Market Participant or Guaranteed Party of any interest in the Agreements (or any one of them), this Guaranty or any other guaranty;
xiv. any order, ruling, or plan of reorganization or liquidation emanating from proceedings under Title 11 of the United States Code with respect to Market Participant or any other Person, including any extension, reduction, composition, or other alteration of the Obligations, whether or not consented to by Guaranteed Party, or any action taken or omitted by Guaranteed Party in any such proceedings, including any election to have Guaranteed Party’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Guaranteed Party in any such proceedings or the taking and holding by Guaranteed Party of any security for any such extension of credit; or
xv. any other circumstance (including, without limitation, any statute of limitations or other laws regarding limitations of actions) or any existence of, or reliance on, any representation by Guaranteed Party that might vary the risk of any Guarantor or otherwise operate as a defense available to, or a legal or equitable discharge of, Market Participant or any Other Guarantor or surety. It is stayed the intent of Guarantor and Guaranteed Party that the obligations and liabilities of Guarantor hereunder are absolute, irrevocable, unconditional and continuing under any and all circumstances and that until the Obligations are indefeasibly paid in full, and not subject to refund or delayed disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any law of the above events, actions, facts or tribunalcircumstance or by any act or occurrence that might, any amounts due and payable hereunder shall nonetheless but for the provisions of this Guaranty, be payable by Guarantor on demand by Lenderdeemed a legal or equitable discharge or release of a guarantor.
Appears in 1 contract
Sources: Guaranty Agreement
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder (i) the occurrence of a default by Guarantor in payment and/or performance of the Guaranteed Recourse Obligations of BorrowerObligations, or any part thereof, when such indebtedness or obligations, as applicable, becomes due and (ii) subject to the cure rights contained in Section 10.1(f) of the Loan Agreement, the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on upon written demand, pay the Guaranteed Recourse Obligations to Administrative Agent for the Benefit of Borrower Lenders from time to Lendertime. It shall not be necessary for LenderAdministrative Agent, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of BorrowerObligations.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of BorrowerObligations, or against any one or more of them, separately or together, without impairing the rights of Administrative Agent and/or Lender against any party hereto.
(d) In the event any payment of any Guaranteed Obligations by Borrower or any other Person to Lender Administrative Agent for the benefit of Lenders is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is Administrative Agent and/or Lenders are required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender Administrative Agent for the benefit of Lenders shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent and/or any Lender or paid by Administrative Agent and/or any Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of BorrowerObligations), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment by Borrower of any amount payable by Borrower Guaranteed Obligations under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on upon written demand by LenderAdministrative Agent.
Appears in 1 contract
Sources: Completion Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder Default: (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of BorrowerObligations, or any part thereof, when such indebtedness becomes due and (ii) subject to the cure rights contained in Section 10.1(f) of the Loan Agreement, the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on upon written demand, pay the Guaranteed Recourse Obligations to Administrative Agent for the Benefit of Borrower Lenders from time to Lendertime. It shall not be necessary for LenderAdministrative Agent, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of BorrowerObligations.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of BorrowerObligations, or against any one or more of them, separately or together, without impairing the rights of Administrative Agent and/or Lender against any party hereto.
(d) In the event any payment of any Guaranteed Obligation by Borrower or any other Person to Lender Administrative Agent for the benefit of Lenders is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is Administrative Agent and/or Lenders are required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender Administrative Agent for the benefit of Lenders shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Administrative Agent and/or any Lender or paid by Administrative Agent and/or any Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of BorrowerObligations), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment by Borrower of any amount payable by Borrower Guaranteed Obligation under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on upon written demand by LenderAdministrative Agent.
Appears in 1 contract
Sources: Unfunded Obligations Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees guarantees that each of the following shall constitute Events of Default hereunder (i) Guaranteed Obligations will be paid strictly in accordance with the occurrence of a default by Guarantor in payment terms of the Guaranteed Recourse Agreements, regardless of any law, regulation, or order of any governmental authority now or hereafter in effect. ▇▇▇▇▇▇▇▇▇ agrees that neither Guaranteed Party’s rights or remedies nor Guarantor’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by, and Guarantor hereby waives any defenses to enforcement it may have (now or in the future) by reach of, or with respect to, the following:
i. any illegality or lack of validity or enforceability of, or defect or deficiency in, any Obligation or any Agreement or any related agreement or instrument for any reason or circumstance, including, without limitation, because Market Participant has any valid defense, claim or offset with respect thereto or because Market Participant’s obligation ceases to exist by operation of law; and Guarantor acknowledges and agrees that Guarantor’s liability under this Guaranty is not conditioned upon the legality, validity or enforceability of the Agreements (or any one of them) or the Obligations and that Guarantor shall remain liable hereon regardless of Borrowerwhether Market Participant or any other Person be found not liable on the Obligations, or any part thereof, when such indebtedness becomes due for any reason (and (regardless of any joinder of Market Participant or any other party in any action to obtain payment or performance of any or all of the Obligations);
ii) . the dissolutionlack of legal existence of the Market Participant or any other Person or lack of legal obligation to discharge all or any portion of the Obligations by the Market Participant or any other Person for any reason whatsoever, including, without limitation, in any insolvency, bankruptcy and/or insolvency or reorganization of any Person;
iii. either with or without notice to or consent of Guarantor.
(b) Upon , any renewal, extension, modification, supplement, subordination or rearrangement of the occurrence terms of any Event or all of Default hereunderthe Obligations and/or any of the Agreements, including material alterations of the Guaranteed Recourse Obligations terms of Borrower, for purposes of this Guaranty, shall be deemed immediately payment (including changes in due date(s) and payable at the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (iinterest rate(s)) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower performance or any others other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Agreements or any other guaranty of any or all of the Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Guaranteed Party to Market Participant or any other Person at any time liable for the payment or performance of any or all of the Guaranteed Recourse Obligations under any of Borrower the Agreements;
iv. any taking, accepting, substitution, release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or Formatted: Left loss of, or any part thereof in failure to create or perfect any action to enforce this Guaranty and/or (iv) resort to lien or security interest with respect to, or any other means of obtaining payment dealings with, any collateral or performance security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Recourse Obligations, or any impairment of Guarantor’s recourse against any Person or collateral;
v. any taking, accepting, impairment, amendment, waiver, or other modification of any guaranty, for all or any portion of the Obligations or the failure of Borrower.
(c) Suit may be brought any other Person to execute or demand may be made against all parties who have signed deliver this Guaranty or any other guaranty covering or agreement, or the release or reduction of liability of any Person or surety, with respect to the Obligations;
vi. any default, failure, or delay, willful or otherwise, in the performance of all or any part portion of the Obligations;
vii. whether express or by operation of law, any partial release of the liability of Guarantor hereunder (except to the extent expressly so released by Guaranteed Recourse Obligations Party in writing) or any complete or partial release of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment by Borrower Market Participant or any other Person to Lender is held to constitute a preferenceliable, fraudulent transfer directly or indirectly, for the payment or performance of any or all of the Obligations;
viii. any change, restructuring, or termination of the corporate structure, ownership, or existence of the Market Participant, Guarantor or any Other Guarantor (as defined below) or any of their subsidiaries or affiliates, or any (voluntary or involuntary) receivership, insolvency, bankruptcy, reorganization, assignment for the benefit of creditors, or other voidable payment similar proceeding affecting the Market Participant, any Other Guarantor or their respective assets, or any resulting release or discharge of any Obligation;
ix. any failure of Guaranteed Party to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Obligations or any part thereof, or of any Agreement or other guaranty, or of any release of or change in any security, or of the occurrence or existence of any default, or of any other action taken or refrained from being taken by Guaranteed Party against Market Participant, any Other Guarantor or any security or other recourse, or of any new agreement between Guaranteed Party and Market Participant or any Other Guarantor, it being understood that Guaranteed Party shall not be required to give Guarantor any notice of any kind under any bankruptcycircumstances with respect to or in connection with the Obligations (including, insolvency or similar lawwithout limitation, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other partyGuaranteed Obligations), such payment by Borrower the Agreements or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply toguaranty, any and all amounts so refunded rights to notice Guarantor may have otherwise had being hereby waived by Lender Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding Market Participant and any Other Guarantor, including any changes in the business or paid by Lender financial condition of Market Participant, and Guarantor acknowledges and agrees that Guaranteed Party shall have no duty to another Person notify Guarantor of any information which Guaranteed Party may have concerning Market Participant or any Other Guarantor; x. any neglect, lack of diligence, delay, omission, failure, or refusal of Guaranteed Party to take, exercise, enforce or prosecute (which amounts shall constitute part or in taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action with respect to any of the Guaranteed Recourse Obligations of Borrower)Obligations, and or to foreclose or take or prosecute any interest paid by Lender and action to foreclose (or in foreclosing or taking or prosecuting any attorneys’ feesaction to foreclose) upon any security therefor, costs and expenses paid or incurred by Lender to exercise (or in exercising) any other right or power with respect to any security therefor, or take, exercise, enforce or prosecute (or in taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action in connection with any such event. If acceleration Agreement, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the time for payment Obligations;
xi. any waiver by Guaranteed Party of any amount payable right or remedy; or any waiver by Borrower Guaranteed Party of the Market Participant’s performance of any of the Obligations or the Market Participant’s or any Other Guarantor’s default under any Loan Document of the Agreements or Other Guarantor under any other guaranty; Formatted: Left
xii. the existence of any claim, counterclaim, set-off or other right that Guarantor may at any time have against Guaranteed Party, Market Participant, any Other Guarantor or any other Person, whether or not arising in connection with this Guaranty, any of the Agreements or any other guaranty;
xiii. any transfer, assignment or mortgaging by the Market Participant or Guaranteed Party of any interest in the Agreements (or any one of them), this Guaranty or any other guaranty;
xiv. any order, ruling, or plan of reorganization or liquidation emanating from proceedings under Title 11 of the United States Code with respect to Market Participant or any other Person, including any extension, reduction, composition, or other alteration of the Obligations, whether or not consented to by Guaranteed Party, or any action taken or omitted by Guaranteed Party in any such proceedings, including any election to have Guaranteed Party’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Guaranteed Party in any such proceedings or the taking and holding by Guaranteed Party of any security for any such extension of credit; or
xv. any other circumstance (including, without limitation, any statute of limitations or other laws regarding limitations of actions) or any existence of, or reliance on, any representation by Guaranteed Party that might vary the risk of any Guarantor or otherwise operate as a defense available to, or a legal or equitable discharge of, Market Participant or any Other Guarantor or surety. It is stayed the intent of Guarantor and Guaranteed Party that the obligations and liabilities of Guarantor hereunder are absolute, irrevocable, unconditional and continuing under any and all circumstances and that until the Obligations are indefeasibly paid in full, and not subject to refund or delayed disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any law of the above events, actions, facts or tribunalcircumstance or by any act or occurrence that might, any amounts due and payable hereunder shall nonetheless but for the provisions of this Guaranty, be payable by Guarantor on demand by Lenderdeemed a legal or equitable discharge or release of a guarantor.
Appears in 1 contract
Sources: Guaranty Agreement
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due and (ii) the dissolution, bankruptcy and/or insolvency of any Guarantor.
(b) Upon the occurrence of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of the Collateral Agent or Lender against any party hereto.
(d) In the event any payment by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such event. If acceleration of the time for payment of any amount payable by Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Sources: Limited Recourse Guaranty (Strategic Storage Trust II, Inc.)
Certain Agreements and Waivers by Guarantor. 4.1 Subject to Section 4.2 and Section 4.9, Guarantor agrees that neither the rights or remedies of the Obligees nor any of Guarantor’s obligations under the terms of this Guaranty, including without limitation, the Guaranteed Obligations, shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances; Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances; and the liability of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(a) any limitation on the liability of, or recourse against, any other person or entity (collectively, “Person”) under the Project Documents or arising under any Laws (as defined in the Hotel Ground Lease), except that Guarantor hereby agrees will be entitled to the limitations on liability set forth in Section 5.1.2 of the PIA as it applies to delay damages only; provided, that the limitations in Section 5.1.2 shall not apply to any amounts payable under Section 1.1(e) above;
(b) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of RIDA under the Project Documents;
(c) the release or taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations;
(d) the operation of any statutes of limitations (unless each of the following shall constitute Events Obligees had written notice of Default a claim and failed to pursue their remedies in the legally prescribed time periods) or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by any of the Obligees against Guarantor, to the fullest extent permitted by Laws;
(e) any homestead exemption or any other exemption under any Laws;
(f) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, or any impairment of Guarantor's recourse against any Person or collateral;
(g) whether express or by operation of Laws, any partial release of the liability of Guarantor hereunder (except to the extent expressly so released) or any complete or partial release of RIDA or any other Person liable, directly or indirectly, for the performance of any or all of the Guaranteed Obligations;
(h) the death, insolvency, bankruptcy, disability, incapacity, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of RIDA or any other Person at any time liable for the performance of any or all of the Guaranteed Obligations;
(i) either with or without notice to or consent of Guarantor, any renewal, extension, modification, supplement, subordination or rearrangement of the occurrence terms of a default by Guarantor in payment any or all of the Guaranteed Recourse Obligations and/or the Project Documents, including material alterations of Borrowerthe terms of payment or performance (including changes with respect to the construction of the Project) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from any of the Project Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by any of the Obligees to RIDA or any other Person at any time liable for the performance of any or all of the Guaranteed Obligations;
(j) any neglect, lack of diligence, delay, omission, failure, or refusal of any of the Obligees to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in connection with the Project Documents, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations;
(k) any failure of any of the Obligees to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, when such indebtedness becomes due or of any Project Document, or of any release of or change in any security, or of the occurrence or existence of any default or event of default under any Project Document (each, an “Event of Default”), or of any other action taken or refrained from being taken by any of the Obligees against RIDA or any security or other recourse, or of any new agreement between any of the Obligees and RIDA, it being understood that none of the Obligees shall be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding RIDA and any collateral, including any changes in the business or financial condition of RIDA or any collateral, and Guarantor acknowledges and agrees that the Obligees shall have no duty to notify Guarantor of any information which the Obligees may have concerning RIDA, the Project, the Project Documents, or any collateral;
(iil) the dissolution, bankruptcy and/or insolvency existence of any claim, counterclaim, setoff or other right that Guarantor may at any time have against RIDA, any of the Obligees, or any other Person, whether or not arising in connection with this Guaranty or any Project Document;
(m) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to RIDA or any other Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by any of the Obligees, or any action taken or omitted by any of the Obligees in any such proceedings, including any election to have any of the Obligees' claim allowed as being secured, partially secured or unsecured, any extension of credit by any of the Obligees in any such proceedings or the taking and holding by any of the Obligees of any security for any such extension of credit;
(n) any other condition, event, omission, action or inaction that would in the absence of this Section 4.1(n) result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
(o) any exercise of remedies, including, but not limited to, foreclosure (or transfer-in-lieu thereof) or the appointment of receiver, by any Permitted Lender; or
(p) enforcement or forbearance by any of the Obligees from enforcement of the Guaranteed Obligations on a net or gross basis.
4.2 Notwithstanding anything to the contrary in this Guaranty, with respect to the Public Entities’ obligations to Guarantor under Section 1.3 hereof under the Project Documents:
(a) To the extent any of the Public Entities fails to perform any of their respective obligations under any of the Project Documents and such failure to perform materially and adversely interferes with or prevents Guarantor’s performance of any of the Guaranteed Obligations (a “Material Failure to Perform”), then Guarantor’s time to perform with respect to the impacted Guaranteed Obligation(s) shall be extended by one day for each day that such Material Failure to Perform delays Guarantor’s performance of such Guaranteed Obligation(s), if notice of such Material Failure to Perform is provided by RIDA or Guarantor to the Public Entities within sixty (60) days of such Material Failure to Perform. For purposes of this Section 4.2, a Material Failure to Perform shall include any failure by the Public Entities (x) under Section 1.3 to make payments to Guarantor of amounts owed under the Project Documents or (y) to make payments to RIDA of amounts owed under the Project Documents. The Parties agree upon the written request of any Party to submit any dispute regarding whether or not a Material Failure to Perform exists permitting a Guarantor delay under this Section 4.2(a) to mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. Such mediation shall be held within San Diego County within thirty (30) days after delivery of written notice requesting same. Each Party shall bear its own costs in such mediation and shall split 50/50 the costs of the mediator.
(b) Upon If a court of competent jurisdiction determines that a Material Failure to Perform occurred and that such Material Failure to Perform was not the occurrence result of the breach of a Tenant Party or the Guarantor under the Project Documents or any Event material and adverse interference by the Hotel Operator (a “Material Failure to Perform Determination”), and the underlying Material Failure to Perform continues for at least ninety (90) days from the date of Default hereunderthe applicable Material Failure to Perform Determination (the “Cure Period”), then, from and after the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at date that the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to applicable Cure Period expires unless (i) institute suit any Public Entity files an action to appeal the Material Failure to Perform Determination no later than forty five (45) days from the date of the applicable Material Failure to Perform Determination and diligently prosecutes such action, in which case, from and after the date that is the later of (x) the date that the applicable Cure Period expires and (y) thirty (30) days after the date that the applicable appellate court of competent jurisdiction awards such Public Entity(ies) relief); or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever the Material Failure to Perform is reasonably capable of cure and the Public Entities have been given either (x) cured the Material Failure to secure Perform, or (y) if the DebtMaterial Failure to Perform is not capable of cure within the Cure Period, (iii) join Borrower or any others liable for have commenced taking appropriate steps to cure such failure and are diligently prosecuting same to completion, then the payment or performance liability of the Guarantor in respect of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action Obligation(s) with respect to enforce which such Material Failure to Perform Determination was made shall automatically terminate, the Guarantor shall be automatically released from its obligations under this Guaranty and/or (iv) resort with respect to such Guaranteed Obligation(s), except for any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrowerobligations that have accrued and have not been discharged prior to such date, and this Guaranty shall automatically terminate.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty If the Hotel Ground Lease terminates due to a Condemnation (as defined in the Hotel Ground Lease) or any other guaranty covering all damage to or destruction of the Resort Hotel or any part thereof, as permitted in the Hotel Ground Lease and in accordance with the terms thereof (the “Hotel Ground Lease Termination”), then, from and after the date that the Hotel Ground Lease Termination occurs (the “Hotel Ground Lease Termination Date”), the liability of the Guarantor in respect of the Guaranteed Recourse Obligations with respect to the Resort Hotel shall automatically terminate and the Guarantor shall be automatically released from its obligations under this Guaranty with respect to the Resort Hotel, except for any obligations that have accrued and have not been discharged prior to the Hotel Ground Lease Termination Date. If the Convention Center Sublease terminates due to a Condemnation (as defined in the Convention Center Sublease) or any damage to or destruction of Borrowerthe Convention Center or any part thereof, in each case, as permitted in the Convention Center Sublease and in accordance with the terms thereof (the “Convention Center Sublease Termination”), then, from and after the date that the Convention Center Sublease Termination occurs (the “Convention Center Sublease Termination Date”), the liability of the Guarantor in respect of the Guaranteed Obligations with respect to the Convention Center shall automatically terminate and the Guarantor shall be automatically released from its obligations under this Guaranty with respect to the Convention Center, except for any obligations that have accrued and have not been discharged prior to the Convention Center Sublease Termination Date. If the Hotel Ground Lease Termination occurs, and the Convention Center Sublease Termination occurs, and Guarantor does not have any amounts owing to the Public Entities under this Guaranty (“Outstanding Payments”), then, from and after the date that is the later of (x) the Hotel Ground Lease Termination Date, (y) the Convention Center Sublease Termination Date and (z) the payment to the Public Entities of any Outstanding Payments, the liability of the Guarantor in respect of the Guaranteed Obligations shall automatically terminate, the Guarantor shall be automatically released from its obligations under this Guaranty, except for any obligations that have accrued and have not been discharged prior to the Hotel Ground Lease Termination Date or against any one or more of themthe Convention Center Sublease Termination Date, separately or togetherwhichever is later, without impairing the rights of Lender against any party heretoand this Guaranty shall automatically terminate.
(d) 4.3 In the event any payment by Borrower RIDA or any other Person to Lender any of the Obligees that is made to satisfy any of the Guaranteed Obligations is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar lawLaw, or if for any other reason Lender is any of the Obligees are required to refund such payment or pay the amount thereof to any other party, such payment by Borrower RIDA or any other party to Lender the Obligees shall not constitute a release of Guarantor from any liability hereunder hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender the Obligees of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts that were so paid by RIDA or any other Person to satisfy any of the Guaranteed Obligations and so refunded by Lender the Obligees or paid by Lender the Obligees to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of BorrowerObligations), and any interest paid by Lender the Obligees and any attorneys’ fees, costs and expenses paid or incurred by Lender the Obligees in connection with any such event. If acceleration .
4.4 It is the intent of Guarantor and the time for payment Public Entities that the obligations and liabilities of any amount payable by Borrower Guarantor hereunder are absolute, irrevocable and unconditional under any Loan Document is stayed and all circumstances and that until the Guaranteed Obligations are fully and finally paid and performed, and not subject to refund or delayed disgorgement, but except as set forth in Section 4.10, the obligations and liabilities of Guarantor hereunder shall not be discharged or released in whole or in part, by any law act or tribunaloccurrence that might, any amounts due and payable hereunder shall nonetheless but for the provisions of this Guaranty, be payable by Guarantor on demand by Lenderdeemed a legal or equitable discharge or release of a guarantor.
Appears in 1 contract
Sources: Completion Guaranty
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees guarantees that each of the following shall constitute Events of Default hereunder (i) Guaranteed Obligations will be paid strictly in accordance with the occurrence of a default by Guarantor in payment terms of the Guaranteed Recourse Agreements, regardless of any law, regulation, or order of any governmental authority now or hereafter in effect. ▇▇▇▇▇▇▇▇▇ agrees that neither Guaranteed Party’s rights or remedies nor Guarantor’s obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by, and Guarantor hereby waives any defenses to enforcement it may have (now or in the future) by reach of, or with respect to, the following:
i. any illegality or lack of validity or enforceability of, or defect or deficiency in, any Obligation or any Agreement or any related agreement or instrument for any reason or circumstance, including, without limitation, because Market Participant has any valid defense, claim or offset with respect thereto or because Market Participant’s obligation ceases to exist by operation of law; and Guarantor acknowledges and agrees that Guarantor’s liability under this Guaranty is not conditioned upon the legality, validity or enforceability of the Agreements (or any one of them) or the Obligations and that Guarantor shall remain liable hereon regardless of Borrowerwhether Market Participant or any other Person be found not liable on the Obligations, or any part thereof, when such indebtedness becomes due for any reason (and (regardless of any joinder of Market Participant or any other party in any action to obtain payment or performance of any or all of the Obligations);
ii) . the dissolutionlack of legal existence of the Market Participant or any other Person or lack of legal obligation to discharge all or any portion of the Obligations by the Market Participant or any other Person for any reason whatsoever, including, without limitation, in any insolvency, bankruptcy and/or insolvency or reorganization of any Person;
iii. either with or without notice to or consent of Guarantor.
(b) Upon , any renewal, extension, modification, supplement, subordination or rearrangement of the occurrence terms of any Event or all of Default hereunderthe Obligations and/or any of the Agreements, including material alterations of the Guaranteed Recourse Obligations terms of Borrower, for purposes of this Guaranty, shall be deemed immediately payment (including changes in due date(s) and payable at the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (iinterest rate(s)) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower performance or any others other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Agreements or any other guaranty of any or all of the Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by Guaranteed Party to Market Participant or any other Person at any time liable for the payment or performance of any or all of the Guaranteed Recourse Obligations under any of Borrower the Agreements;
iv. any taking, accepting, substitution, release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any part thereof in failure to create or perfect any action to enforce this Guaranty and/or (iv) resort to lien or security interest with respect to, or any other means of obtaining payment dealings with, any collateral or performance security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Recourse Obligations, or any impairment of Guarantor’s recourse against any Person or collateral;
v. any taking, accepting, impairment, amendment, waiver, or other modification of any guaranty, for all or any portion of the Obligations or the failure of Borrower.
(c) Suit may be brought any other Person to execute or demand may be made against all parties who have signed deliver this Guaranty or any other guaranty covering or agreement, or the release or reduction of liability of any Person or surety, with respect to the Obligations;
vi. any default, failure, or delay, willful or otherwise, in the performance of all or any part portion of the Obligations;
vii. whether express or by operation of law, any partial release of the liability of Guarantor hereunder (except to the extent expressly so released by Guaranteed Recourse Obligations Party in writing) or any complete or partial release of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment by Borrower Market Participant or any other Person to Lender is held to constitute a preferenceliable, fraudulent transfer directly or indirectly, for the payment or performance of any or all of the Obligations;
viii. any change, restructuring, or termination of the corporate structure, ownership, or existence of the Market Participant, Guarantor or any Other Guarantor (as defined below) or any of their subsidiaries or affiliates, or any (voluntary or involuntary) receivership, insolvency, bankruptcy, reorganization, assignment for the benefit of creditors, or other voidable payment similar proceeding affecting the Market Participant, any Other Guarantor or their respective assets, or any resulting release or discharge of any Obligation;
ix. any failure of Guaranteed Party to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Obligations or any part thereof, or of any Agreement or other guaranty, or of any release of or change in any security, or of the occurrence or existence of any default, or of any other action taken or refrained from being taken by Guaranteed Party against Market Participant, any Other Guarantor or any security or other recourse, or of any new agreement between Guaranteed Party and Market Participant or any Other Guarantor, it being understood that Guaranteed Party shall not be required to give Guarantor any notice of any kind under any bankruptcycircumstances with respect to or in connection with the Obligations (including, insolvency or similar lawwithout limitation, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other partyGuaranteed Obligations), such payment by Borrower the Agreements or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply toguaranty, any and all amounts so refunded rights to notice Guarantor may have otherwise had being hereby waived by Lender Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding Market Participant and any Other Guarantor, including any changes in the business or paid by Lender financial condition of Market Participant, and Guarantor acknowledges and agrees that Guaranteed Party shall have no duty to another Person notify Guarantor of any information which Guaranteed Party may have concerning Market Participant or any Other Guarantor; x. any neglect, lack of diligence, delay, omission, failure, or refusal of Guaranteed Party to take, exercise, enforce or prosecute (which amounts shall constitute part or in taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action with respect to any of the Guaranteed Recourse Obligations of Borrower)Obligations, and or to foreclose or take or prosecute any interest paid by Lender and action to foreclose (or in foreclosing or taking or prosecuting any attorneys’ feesaction to foreclose) upon any security therefor, costs and expenses paid or incurred by Lender to exercise (or in exercising) any other right or power with respect to any security therefor, or take, exercise, enforce or prosecute (or in taking, exercising, enforcing or prosecuting) any claim, demand, right, remedy, or action in connection with any such event. If acceleration Agreement, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the time for payment Obligations;
xi. any waiver by Guaranteed Party of any amount payable right or remedy; or any waiver by Borrower Guaranteed Party of the Market Participant’s performance of any of the Obligations or the Market Participant’s or any Other Guarantor’s default under any Loan Document of the Agreements or Other Guarantor under any other guaranty;
xii. the existence of any claim, counterclaim, set-off or other right that Guarantor may at any time have against Guaranteed Party, Market Participant, any Other Guarantor or any other Person, whether or not arising in connection with this Guaranty, any of the Agreements or any other guaranty;
xiii. any transfer, assignment or mortgaging by the Market Participant or Guaranteed Party of any interest in the Agreements (or any one of them), this Guaranty or any other guaranty;
xiv. any order, ruling, or plan of reorganization or liquidation emanating from proceedings under Title 11 of the United States Code with respect to Market Participant or any other Person, including any extension, reduction, composition, or other alteration of the Obligations, whether or not consented to by Guaranteed Party, or any action taken or omitted by Guaranteed Party in any such proceedings, including any election to have Guaranteed Party’s claim allowed as being secured, partially secured or unsecured, any extension of credit by Guaranteed Party in any such proceedings or the taking and holding by Guaranteed Party of any security for any such extension of credit; or
xv. any other circumstance (including, without limitation, any statute of limitations or other laws regarding limitations of actions) or any existence of, or reliance on, any representation by Guaranteed Party that might vary the risk of Guarantor or otherwise operate as a defense available to, or a legal or equitable discharge of, Market Participant or any Other Guarantor or surety. It is stayed the intent of Guarantor and Guaranteed Party that the obligations and liabilities of Guarantor hereunder are absolute, irrevocable, unconditional and continuing under any and all circumstances and that until the Obligations are indefeasibly paid in full, and not subject to refund or delayed disgorgement, the obligations and liabilities of Guarantor hereunder shall not be discharged or released, in whole or in part, by any law of the above events, actions, facts or tribunalcircumstance or by any act or occurrence that might, any amounts due and payable hereunder shall nonetheless but for the provisions of this Guaranty, be payable by Guarantor on demand by Lenderdeemed a legal or equitable discharge or release of a guarantor.
Appears in 1 contract
Sources: Guaranty Agreement
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due and (ii) an “Event of Default” with respect to Guarantor under Section 10.1 of the dissolution, bankruptcy and/or insolvency of any GuarantorLoan Agreement.
(b) Upon the occurrence and during the continuance of any Event of Default hereunder, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or so paid by Lender to another Person (which amounts shall constitute part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any reasonable attorneys’ fees, out-of-pocket costs and expenses actually paid or incurred by Lender in connection with any such event. If acceleration of the time for payment of any amount payable by Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Sources: Guaranty of Recourse Obligations (Pacific Oak Strategic Opportunity REIT II, Inc.)
Certain Agreements and Waivers by Guarantor. (a) Guarantor hereby agrees that each of the following shall constitute Events of Default hereunder (i) the occurrence of a default by Guarantor in payment of the Guaranteed Recourse Obligations of Borrower, or any part thereof, when such indebtedness becomes due and (ii) a breach of the dissolution, bankruptcy and/or insolvency terms of any GuarantorSection 10.1(f) of the Loan Agreement.
(b) Upon In the occurrence event the Guaranteed Recourse Obligations of any Event of Default hereunderBorrower come due under the Loan Agreement, the Guaranteed Recourse Obligations of Borrower, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of Lender. In such event Guarantor shall, on demand, pay the Guaranteed Recourse Obligations of Borrower to Lender. It shall not be necessary for Lender, in order to enforce such payment, first to (i) institute suit or pursue or exhaust any rights or remedies against Borrower or others liable for the Debt, (ii) enforce any rights against any security that shall ever have been given to secure the Debt, (iii) join Borrower or any others liable for the payment or performance of the Guaranteed Recourse Obligations of Borrower or any part thereof in any action to enforce this Guaranty and/or (iv) resort to any other means of obtaining payment or performance of the Guaranteed Recourse Obligations of Borrower.
(c) Suit may be brought or demand may be made against all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Recourse Obligations of Borrower, or against any one or more of them, separately or together, without impairing the rights of Lender against any party hereto.
(d) In the event any payment by Borrower or any other Person to Lender is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason Lender is required to refund such payment or pay the amount thereof to any other party, such payment by Borrower or any other party to Lender shall not constitute a release of Guarantor from any liability hereunder hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by Lender of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by Lender or paid by Lender to another Person (which so long as and to the extent that such amounts shall constitute so refunded constituted part of the Guaranteed Recourse Obligations of Borrower), and any interest paid by Lender and any reasonable attorneys’ fees, costs and expenses paid or incurred by Lender in connection with any such eventtherewith. If acceleration of the time for payment of any amount payable by Borrower under any Loan Document is stayed or delayed by any law or tribunal, any amounts due and payable hereunder shall nonetheless be payable by Guarantor on demand by Lender.
Appears in 1 contract
Sources: Limited Recourse Guaranty (Strategic Storage Trust, Inc.)