Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement. (b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations. (c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 4 contracts
Sources: Guaranty (Vericity, Inc.), Guaranty (Vericity, Inc.), Guaranty (Vericity, Inc.)
Certain Waivers. (a) To Each Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense of any Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of any Borrower; (b) any defense based on any claim that would otherwise such Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to require any Secured Party to proceed against any Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in any Secured Party’s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies remedies; (e) any benefit of and any right to participate in any security now or hereafter held by Members Mutual any Secured Party; (f) any defense relating to the failure of any Secured Party to comply with the applicable laws in connection with the sale or HoldCo. The Guarantor waives promptness, diligence, notice other disposition of Collateral for all or any part of the Guaranteed Obligations; (g) any amendment or waiver of the term of any Guaranteed Obligation; (h) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; (i) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of such Guarantor under this Guaranty and (j) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty and or of the existence, creation or incurrence of new or additional Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may . This Guaranty shall not be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated affected by the Agreementgenuineness, and all suretyship defenses generally (other than defenses to the payment validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any Collateral therefor, or by any fact or circumstance relating to the Standby Purchaser Guaranteed Obligations which might otherwise constitute a defense to the obligations of any Guarantor under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the and each Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 4 contracts
Sources: Loan Agreement (Key Energy Services Inc), Loan Agreement (Key Energy Services Inc), Loan and Security Agreement (Key Energy Services Inc)
Certain Waivers. (a) To Borrower hereby waives the fullest extent permitted right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Applicable LawLender or its agents or otherwise to offset any obligations to make the payments required by the Loan Documents. No failure by Lender to perform any of its obligations hereunder shall be a valid defense to, the Guarantor hereby expressly waives or result in any and all rights or defenses arising by reason of offset against, any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of payments which Borrower is obligated to make under any of the Guaranteed ObligationsLoan Documents. Without limiting any of the other provisions contained herein, all defenses which may be available Borrower hereby unconditionally and irrevocably waives, to the maximum extent not prohibited by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effectapplicable law, any right rights it may have to require the marshalling of assets of the Standby Purchaser claim or recover against Lender in any other Person interested in the transactions contemplated by the Agreementlegal action or proceeding any special, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement exemplary, punitive or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreementconsequential damages.
(b) To the fullest extent permitted by Applicable Lawapplicable Legal Requirements, the Guarantor Borrower hereby unconditionally irrevocably waives and irrevocably agrees not to exercise relinquishes any rights right, remedy, claim or defense that it Borrower may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performancehave, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, have the right to take or receive from the Standby Purchaser or such other Person, directly or indirectlyassert, in cash order to avail itself of the benefits of any Emergency Law, or other property otherwise exercise any right or by setoption under any Emergency Law, where such Emergency Law (A) permits (x) Borrower to defer payment of, or otherwise elect not to pay, any amounts as and when due under the Loan Documents and/or (y) Borrower to delay performance of, or otherwise elect not to perform, any non-off monetary obligation of Borrower as and when required under the Loan Documents and/or (B) prevents Lender, or requires Lender to forbear, from exercising (at such time or another time in the future) any other mannerone or more rights or remedies that, payment or security on account in the absence of such claimEmergency Law, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid could otherwise be available to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party Lender under the terms of the Agreement (including, without limitation, any such claim Loan Documents or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsapplicable Legal Requirements.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Loan Agreement (NOVONIX LTD), Loan Agreement (NOVONIX LTD), Loan Agreement (Medalist Diversified REIT, Inc.)
Certain Waivers. (a) Each Credit Party agrees, to the extent it may lawfully do so, that it will not at any time in any manner whatsoever claim or take the benefit or advantage of, any appraisement, valuation, stay, extension, moratorium, turnover or redemption Law, or any Law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of this Agreement or any Security Document, hereby waives all benefit or advantage of all such Laws, and covenants that it will not hinder, delay or impede under color of any such Law the execution of any power granted to the Collateral Agent in this Agreement or any Security Document but will suffer and permit the execution of every such power as though no such Law were in force.
(b) Each Credit Party, to the extent it may lawfully do so, on behalf of itself and all who may claim through or under it, including without limitation any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or in any Security Document or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Agreement or any Security Document, and consents and agrees that all the Collateral may at any such sale be offered and sold as an entirety. To the fullest extent permitted by Applicable Law, the Guarantor each Credit Party hereby expressly waives any and all rights or defenses arising by reason of it may at any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right time have to require the marshalling of assets of the Standby Purchaser Collateral Agent or any other Person interested in the transactions contemplated by the Secured Creditor to exercise its rights and remedies under this Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or Security Document any other Person interested in the transactions contemplated by the Agreement that arise from the existenceLoan Document, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement or instrument, at Law or in connection herewithequity, including, without limitation, as between different Persons or against any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate single Person in any claim particular order, method or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct Each Credit Party waives, to the extent permitted by applicable Law, presentment, demand, protest and indirect benefits from any notice of any kind (except notices expressly required hereunder or under any Security Document) in connection with this Agreement and the transactions contemplated Security Documents and any action taken by the Agreement and that Collateral Agent with respect to the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsCollateral.
Appears in 3 contracts
Sources: Intercreditor Agreement, Intercreditor and Collateral Agency Agreement (Stonemor Partners Lp), Intercreditor and Collateral Agency Agreement (Stonemor Partners Lp)
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Each Guarantor hereby knowingly, voluntarily and expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, waives:
(i) presentment, demand for payment, demand for performance, protest and notice of non-performanceany other kind, defaultincluding, dishonor and protestwithout limitation, notice of nonpayment or other nonperformance (including notice of default under any Credit Document with respect to any Guaranteed Obligations), protest, dishonor, acceptance hereof, extension of additional credit to the incurrence Borrowers and of any of the Guaranteed Obligations, all defenses which may be available by virtue matters referred to in Section 2 and of any valuation, stay, moratorium law or other similar law now or hereafter in effect, rights to consent thereto;
(ii) any right to require the marshalling Guaranteed Parties or any of assets them, as a condition of payment or performance by such Guarantor hereunder, to proceed against, or to exhaust or have resort to any Collateral or other security from or any deposit balance or other credit in favor of, the Standby Purchaser Borrowers, any other Guarantor or any other Person interested in the transactions contemplated by the Agreementdirectly or indirectly liable for any Guaranteed Obligations, or to pursue any other remedy or enforce any other right; and all suretyship defenses generally (any other than defenses defense based on an election of remedies with respect to the payment of the any Collateral or other security for any Guaranteed Obligations or for any guaranty or other liability in respect thereof, notwithstanding that are available any such election (including any failure to the Standby Purchaser under the Agreement pursue or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise enforce any rights that it or remedies) may now have impair or hereafter acquire extinguish any right of indemnification, contribution, reimbursement or subrogation or other right or remedy of any Guarantor against the Standby Purchaser Borrowers, any other Guarantor or any other Person interested in the transactions contemplated directly or indirectly liable for any Guaranteed Obligations or any such Collateral or other security;
(iii) any right or defense based on or arising by the Agreement that arise from the existence, payment, performance, reason of any right or enforcement defense of the Guarantor’s obligations under or in respect of this Guaranty Borrowers or any other agreement in connection herewithPerson, including, without limitation, any right defense based on or arising from a lack of subrogation, reimbursement, exoneration, contribution authority or indemnification and other disability of the Borrowers or any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether the invalidity or not such claimunenforceability of any Guaranteed Obligations, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash any Collateral or other property security therefor or by set-off any Credit Document or in any other manneragreement or instrument delivered pursuant thereto, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation cessation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds liability of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust Borrowers for any reason other than the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds satisfaction of the Guarantor and shall forthwith be paid Termination Requirements;
(iv) any defense based on any Guaranteed Party’s acts or delivered to Members Mutual or HoldCo omissions in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to administration of the Guaranteed Obligations, any guaranty or other liability in accordance with the terms respect thereof or any Collateral or other security for any of the Agreement. Notwithstanding anything foregoing, and promptness, diligence or any requirement that any Guaranteed Party create, protect, perfect, secure, insure, continue or maintain any Liens in any such Collateral or other security;
(v) any right to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party, as a defense, counterclaim, crossclaim or setoff, any defense, counterclaim, claim, right of recoupment or setoff that it may at any time have against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any failure of consideration, fraud, fraudulent inducement, statute of limitations, payment, accord and satisfaction and usury), other than compulsory counterclaims and other than the payment in full in cash of the Guaranteed Obligations Obligations; and
(up to vi) any defense based on or afforded by any applicable law that limits the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to liability of or exonerates guarantors or sureties or that may in any other way conflict with the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsGuaranty.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Guaranty Agreement, Guaranty Agreement (Crawford & Co), Guaranty Agreement (Crawford & Co)
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance of this Guaranty and Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice Lender) of the incurrence liability of the Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Guarantor’s liability hereunder; (d) any right to require the Lender to proceed against the Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the Lender ‘s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; (f) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Standby Purchaser Guarantor under this Guaranty and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any other Person interested in kind or nature whatsoever with respect to the transactions contemplated by the AgreementGuaranteed Obligations, and all suretyship defenses generally (other than defenses to notices of acceptance of this Guaranty or of the payment existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Standby Purchaser under Guaranteed Obligations which might otherwise constitute a defense to the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Guarantor under this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Credit Agreement (Franklin Street Properties Corp /Ma/), Credit Agreement (Franklin Street Properties Corp /Ma/), Credit Agreement (Franklin Street Properties Corp /Ma/)
Certain Waivers. Each Guarantor waives (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance Borrower, any other Loan Party or any other guarantor of this Guaranty the Guaranteed Obligations or any part thereof, or the cessation from any cause whatsoever (including any act or omission of any Creditor Party) of the liability of the Borrower (other than the defense of prior payment and performance in full of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice ); (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the incurrence Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any requirement to proceed against the Borrower or any other Loan Party, proceed against or exhaust any security for the Guaranteed Obligations, all defenses which may be available by virtue or pursue any other remedy in the power of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Creditor Party whatsoever; (e) any right to require the marshalling benefit of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy of Members Mutual or HoldCo against hereafter held by any Creditor Party; and (f) to the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common fullest extent permitted by law, including, without limitation, any and all other defenses (other than the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, defense of prior payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment performance in full in immediately available funds of the Guaranteed Obligations under this GuarantyObligations) or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and non-compulsory counterclaims (provided, that the foregoing waiver shall not be deemed a waiver of such amount shall be received Guarantor’s right to assert any claim that would constitute a setoff or counterclaim against any Person in any separate action or proceeding) and held in trust all presentments, demands for the benefit payment or performance, notices of Members Mutual nonpayment or nonperformance, protests, notices of protest, notices of dishonor and HoldCo, shall be segregated from all other property and funds notices or demands of the Guarantor and shall forthwith be paid any kind or delivered to Members Mutual or HoldCo in the same form as so received (nature whatsoever with any necessary endorsement or assignment) to be credited and applied respect to the Guaranteed Obligations, in accordance with the terms and all notices of acceptance of this Guaranty or of the Agreement. Notwithstanding anything to the contrary contained in this Guarantyexistence, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, creation or release incurrence of new or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any additional Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsObligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Credit Agreement (Getty Realty Corp /Md/), Credit Agreement (Getty Realty Corp /Md/), Credit Agreement (Getty Realty Corp /Md/)
Certain Waivers. Each Guarantor waives:
(a) To the fullest extent permitted by Applicable Lawright to require the Beneficiaries to proceed against the Company or any other Obligor, to proceed against or exhaust any collateral or to pursue any other remedy in any Beneficiary's power whatsoever and the Guarantor hereby expressly waives right to have the property of the Company or any and other Obligor first applied to the discharge of the Obligations;
(b) all rights and benefits under applicable law purporting to reduce a Guarantor's obligations in proportion to the obligation of the principal or defenses arising by reason providing that the obligation of a surety or Guarantor must neither be larger nor in other respects more burdensome than that of the principal;
(c) the benefits of any Applicable Law that would otherwise require statute of limitations affecting the Obligations or any Guarantor's liability hereunder;
(d) any requirement of marshaling or any other principle of election of remedies by Members Mutual remedies;
(e) any right to assert against any Beneficiary any defense (legal or HoldCo. The equitable), set-off, counterclaim and other right that any Guarantor waives promptness, diligence, notice of may now or any time hereafter have against the acceptance of this Guaranty and of the Guaranteed Obligations, Company or any other Obligor;
(f) presentment, demand for paymentpayment or performance (including diligence in making demands hereunder), notice of non-performancedishonor or nonperformance, default, dishonor and protest, acceptance and notice of acceptance of the incurrence Obligor Guarantee, and, except to the extent expressly required by the Guaranteed Securities or this Indenture, all other notices of any kind, including (i) notice of any action taken or omitted by the Beneficiaries in reliance hereon, (ii) notice of any default by the Company or any other Obligor, (iii) notice that any portion of the Guaranteed ObligationsObligations is due, (iv) notice of any action against the Company or any other Obligor, or any enforcement or other action with respect to any collateral, or the assertion of any right of any Beneficiary hereunder; and
(g) all defenses which that at any time may be available to any Guarantor by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Indenture (MGM Grand Inc), Indenture (Biloxi Casino Corp), Indenture (MGM Grand Inc)
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Each Guarantor hereby knowingly, voluntarily and expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, waives:
(i) presentment, demand for payment, demand for performance, protest and notice of non-performanceany other kind, defaultincluding, dishonor and protestwithout limitation, notice of nonpayment or other nonperformance (including notice of default under any Credit Document with respect to any Guaranteed Obligations), protest, dishonor, acceptance hereof, extension of additional credit to the incurrence Borrower and of any of the Guaranteed Obligations, all defenses which may be available by virtue matters referred to in Section 2 and of any valuation, stay, moratorium law or other similar law now or hereafter in effect, rights to consent thereto;
(ii) any right to require the marshalling Guaranteed Parties or any of assets them, as a condition of payment or performance by such Guarantor hereunder, to proceed against, or to exhaust or have resort to any Collateral or other security from or any deposit balance or other credit in favor of, the Standby Purchaser Borrower, any other Guarantor or any other Person interested in the transactions contemplated by the Agreementdirectly or indirectly liable for any Guaranteed Obligations, or to pursue any other remedy or enforce any other right; and all suretyship defenses generally (any other than defenses defense based on an election of remedies with respect to the payment of the any Collateral or other security for any Guaranteed Obligations or for any guaranty or other liability in respect thereof, notwithstanding that are available any such election (including any failure to the Standby Purchaser under the Agreement pursue or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise enforce any rights that it or remedies) may now have impair or hereafter acquire extinguish any right of indemnification, contribution, reimbursement or subrogation or other right or remedy of any Guarantor against the Standby Purchaser Borrower, any other Guarantor or any other Person interested in directly or indirectly liable for any Guaranteed Obligations or any such Collateral or other security; and, without limiting the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement generality of the Guarantor’s obligations under foregoing, each Guarantor hereby specifically waives the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, as amended from time to time, and any similar statute or in respect law of this Guaranty any other jurisdiction, as the same may be amended from time to time;
(iii) any right or defense based on or arising by reason of any right or defense of the Borrower or any other agreement in connection herewithPerson, including, without limitation, any right defense based on or arising from a lack of subrogation, reimbursement, exoneration, contribution authority or indemnification and other disability of the Borrower or any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether the invalidity or not such claimunenforceability of any Guaranteed Obligations, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash any Collateral or other property security therefor or by set-off any Credit Document or in any other manneragreement or instrument delivered pursuant thereto, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation cessation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds liability of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust Borrower for any reason other than the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds satisfaction of the Guarantor and shall forthwith be paid Termination Requirements;
(iv) any defense based on any Guaranteed Party’s acts or delivered to Members Mutual or HoldCo omissions in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to administration of the Guaranteed Obligations, any guaranty or other liability in accordance with the terms respect thereof or any Collateral or other security for any of the Agreement. Notwithstanding anything foregoing, and promptness, diligence or any requirement that any Guaranteed Party create, protect, perfect, secure, insure, continue or maintain any Liens in any such Collateral or other security;
(v) any right to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assertassert against any Guaranteed Party, as a defense todefense, counterclaim, crossclaim or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deductionany defense, defense counterclaim, claim, right of recoupment or release set-off that the Standby Purchaser could assert it may at any time have against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any failure of consideration, fraud, fraudulent inducement, statute of limitations, payment, accord and satisfaction and usury), other than compulsory counterclaims and other than the payment in full in cash of the Guaranteed Obligations Obligations; and
(up to vi) any defense based on or afforded by any applicable law that limits the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to liability of or exonerates guarantors or sureties or that may in any other way conflict with the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsGuaranty.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Credit Agreement (Swisher Hygiene Inc.), Guaranty Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.)
Certain Waivers. Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by: (a) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent or Merger Sub or any other Guarantor; (b) any change in the time, place or manner of payment of any of the Guaranteed Obligations, or any waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement or Financing Letters made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any of the Guaranteed Obligations; (c) the addition, substitution or release of any entity or other Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any other Guarantor); (d) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any other Guarantor); (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (including any other Guarantors); (f) the adequacy of any means the Guaranteed Party may have of obtaining payment related to the Guaranteed Obligations; (g) the value, genuineness, validity, regularity, illegality or enforceability of the Financing Letters, in each case in accordance with the terms and provisions thereof; or (h) any discharge of a Guarantor as a matter of applicable Law or equity (other than a discharge of a Guarantor with respect to the Guaranteed Obligations as a result of indefeasible payment in full of the Guaranteed Obligations in accordance with their terms or as a result of defenses to the payment of the Guaranteed Obligations that would be available to Parent under the Merger Agreement). To the fullest extent permitted by Applicable Law, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Applicable Law that which would otherwise require any election of remedies by Members Mutual or HoldCothe Guaranteed Party. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence any Guaranteed Obligations incurred and all other notices of any of kind (other than notices required to be made to Parent or Merger Sub pursuant to the Guaranteed ObligationsMerger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, effect or any right to require the marshalling of assets of the Standby Purchaser Parent or Merger Sub or any other Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by the Agreement, and all suretyship defenses generally Merger Agreement (including any other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this GuarantyGuarantor). For Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the avoidance of doubt, transactions contemplated by the parties agree Merger Agreement and that nothing contained the waivers set forth in this Limited Guaranty is intended to modify or supersede the notice provisions are knowingly made in contemplation of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the such benefits. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that it may now have or hereafter acquire against the Standby Purchaser Parent or any other Person interested in the transactions contemplated by the Agreement Merger Sub that arise from the existence, payment, performance, or enforcement of the such Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewithLimited Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual the Guaranteed Party against Parent or HoldCo against the Standby Purchaser or such other PersonMerger Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common lawLaw, including, without limitation, the right to take or receive from the Standby Purchaser Parent or such other PersonMerger Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and no Guarantor shall exercise any such rights unless and until the Guaranteed Obligations all amounts payable by such Guarantor under this Limited Guaranty (which shall be subject to such Guarantor’s Cap) shall have been satisfied indefeasibly paid in fullfull in immediately available funds. If any amount is shall be paid to the any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations all amounts payable by such Guarantor under this GuarantyLimited Guaranty (which shall be subject to such Guarantor’s Cap), such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Guaranteed Party, shall be segregated from other property and funds of the such Guarantor and shall forthwith be promptly paid or delivered to Members Mutual or HoldCo the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreementall amounts payable by such Guarantor under this Limited Guaranty. Notwithstanding anything to the contrary contained in this GuarantyLimited Guaranty or otherwise, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available hereby agrees that any of the Guaranteed Obligations (up each Guarantor shall have all defenses to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any payment of its obligations under this Limited Guaranty (which in any event shall be subject to such Guarantor’s Cap) that would be available to Parent and/or Merger Sub under the AgreementMerger Agreement with respect to the Guaranteed Obligations, the Guarantor shall similarly automatically and without further action on the part of as well as any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty defenses in respect of such relieved obligationsany fraud or willful misconduct of the Guaranteed Party.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Limited Guaranty, Limited Guaranty (Quest Software Inc), Limited Guaranty (Quest Software Inc)
Certain Waivers. (a) To Holdings waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense of the Borrower, any other Loan Party, or any other guarantor of the Guaranteed Obligations or any part thereof, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of the Borrower (other than the defense that would otherwise the Guaranteed Obligations have been fully performed and paid in full in immediately available funds); (b) any defense based on any claim that Holdings’ obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting Holdings’ liability hereunder; (d) any right to require any election of remedies by Members Mutual Guaranteed Party to proceed against the Borrower, proceed against or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of exhaust any security for the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of or pursue any other remedy in the incurrence power of any Guaranteed Party whatsoever and any defense based upon the doctrines of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets or of the Standby Purchaser or election of remedies; (e) any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment benefit of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy of Members Mutual hereafter held by any Guaranteed Party; (f) any fact or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right circumstance related to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall which might otherwise constitute a defense to the obligations of Holdings under this Guaranty; and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties (other than the defense that the Guaranteed Obligations have been satisfied in full. If any amount is fully performed and paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds funds). Each Guarantor expressly waives all presentments, demands for payment or performance, notices of the Guaranteed Obligations under this Guarantynonpayment or nonperformance, such amount shall be received protests, notices of protest, notices of dishonor and held in trust for the benefit all other notices or demands of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid any kind or delivered to Members Mutual or HoldCo in the same form as so received (nature whatsoever with any necessary endorsement or assignment) to be credited and applied respect to the Guaranteed Obligations, in accordance with the terms and all notices of acceptance of this Guaranty or of the Agreement. Notwithstanding anything to the contrary contained in this Guarantyexistence, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, creation or release incurrence of new or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any additional Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsObligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Credit Agreement (NorthStar Realty Europe Corp.), Credit Agreement (NorthStar Realty Europe Corp.), Credit Agreement (NorthStar Realty Europe Corp.)
Certain Waivers. (ai) To Holdings waives, to the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives (A) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance of this Guaranty and Borrower or any other Guarantor, or the cessation from any cause whatsoever (including any act or omission of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice Agent or any Lender) of the incurrence liability of the Borrower or any other Guarantor; (B) any defense based on any claim that Holdings’ obligations exceed or are more burdensome than those of the Borrower or any other Guarantor; (C) the benefit of any statute of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, limitations affecting Holdings’ liability hereunder; (D) any right to require the marshalling of assets of Agent or any Lender to proceed against the Standby Purchaser Borrower or any other Person interested Guarantor, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment power of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Agent or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement Lender whatsoever; (E) any benefit of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy hereafter held by the Agent or any Lender; and (F) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of Members Mutual or HoldCo exonerating guarantors or sureties, except payment in full of the Obligations. Holdings expressly waives, to the fullest extent permitted by law, all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Holdings Guaranty or of the existence, creation or incurrence of new or additional Obligations, except as otherwise expressly set forth in this Agreement.
(ii) Holdings agrees that its obligations hereunder are absolute and unconditional, irrespective of (A) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement to which the Borrower or other Obligor is or may become a party or be bound; (B) the absence of any action to enforce this Agreement (including this Section 8.18) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Lender with respect thereto; (C) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guarantee for the Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof (including the release of any security or guarantee); (D) the insolvency of the Borrower or any other Obligor; (E) any election by Agent or any Lender in proceeding under applicable law for the application of Section 1111(b)(2) of the Bankruptcy Code; (F) any borrowing or grant of a Lien by the Borrower or other Obligor, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (G) the disallowance of any claims of Agent or any Lender against the Standby Purchaser Borrower or any other Guarantor for the repayment of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (H) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except defense of payment.
(iii) Holdings expressly waives, to the fullest extent permitted by law, all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel the Agent or Lenders to marshal assets or to proceed against the Borrower, any other Obligor, or any other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against Holdings. Holdings waives, to the fullest extent permitted by law, all defenses available to a surety, guarantor or accommodation co-obligor other than defense of payment. It is agreed among Holdings, the Agent and Lenders that the provisions of this Section 8.18 are essential to the transaction contemplated by the Loan Documents and that, but for such provisions, the Agent and Lenders would decline to make the Term Loans. Holdings acknowledges that its guarantee pursuant to this Section 8.18 is necessary to the conduct and promotion of its business, and can be expected to benefit such business.
(iv) Agent and ▇▇▇▇▇▇▇ may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon Collateral by judicial foreclosure or non judicial sale or enforcement, without affecting any rights and remedies under this Section 8.18. If, in taking any action in connection with the exercise of any rights or remedies, Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Obligor or other Person, whether because of any applicable laws pertaining to “election of remedies” or not otherwise, Holdings consents to such claimaction and waives any claim based upon it, remedy even if the action may result in loss of any rights of subrogation that Holdings might otherwise have had. Any election of remedies that results in denial or right arises in equity or under contract, statute or common law, including, without limitation, impairment of the right of Agent or any Lender to take seek a deficiency judgment against the Borrower or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until Obligor shall not impair Holdings’ obligation to pay the Guaranteed Obligations shall have been satisfied in full. If any full amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Loan Agreement (Heritage Distilling Holding Company, Inc.), Loan Agreement (Heritage Distilling Holding Company, Inc.), Loan Agreement (Heritage Distilling Holding Company, Inc.)
Certain Waivers. (a) To the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives any Maker and all rights guarantors, sureties and endorsers, severally waive all applicable exemption rights, whether under any state constitution, homestead laws or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessotherwise, and also severally waive diligence, valuation and appraisement, presentment for payment, protest and demand, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for paymentprotest, notice of non-default, notice of intention to accelerate all sums under this Note or the Loan Documents, notice of acceleration of all sums under this Note or the Loan Documents, demand and dishonor and diligence in collection and nonpayment of this Note and all other notices in connection with the delivery, acceptance, performance, default, dishonor and protest, notice or enforcement of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of this Note (except notice of default and any other notice as specifically provided for in this Note, the Guaranteed Obligations that are available to Deed of Trust or the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this GuarantyLoan Documents). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawlaw, Maker further waives all benefit that might accrue to Maker by virtue of any present or future laws exempting the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Property, or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceproperty, payment, performancereal or personal, or enforcement the proceeds arising from any sale of the Guarantor’s obligations any such property, from attachment, levy, or sale under execution, or in respect providing for any stay of execution to be issued on any judgment recovered on this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off Note or in any other manneraction to foreclose the Deed of Trust, payment injunction against sale pursuant to power of sale, exemption from civil process or security on account extension of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in fulltime for payment. If ▇▇▇▇▇ agrees that any amount is paid real estate that may be levied upon pursuant to the Guarantor in violation a judgment obtained by virtue of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense toNote, or release or discharge ofany writ of execution issued thereon, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, may be sold upon any such claim writ in whole or defense if available that in part in any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable order desired by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations▇▇▇▇▇.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 3 contracts
Sources: Deed of Trust Note (Innkeepers Usa Trust/Fl), Deed of Trust Note (Innkeepers Usa Trust/Fl), Deed of Trust Note (Innkeepers Usa Trust/Fl)
Certain Waivers. Borrower hereby irrevocably and unconditionally waives (ai) To the fullest extent permitted by Applicable Lawpromptness and diligence, the Guarantor hereby expressly waives any and all rights or defenses arising by reason (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual Lender hereunder or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or under any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Loan Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim instrument relating hereto or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) thereto except to the extent otherwise provided herein, (iii) all other notices, demands and protests, and all other formalities of every kind in connection with the Standby Purchaser is relieved enforcement of Borrower's obligations hereunder and under the other Loan Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving Borrower of any of its obligations hereunder or under the Agreementother Loan Documents, (iv) any requirement that Lender protect, secure, perfect or insure any lien on any collateral for the Loan or exhaust any right or take any action against Borrower, Guarantor shall similarly automatically or any other person or entity or against any collateral for the Loan, (v) any right or claim of right to cause a marshalling of Borrower's assets and without further action on the part (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or to any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Loan Document. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF LENDER WITH RESPECT TO THIS AGREEMENT, THE NOTE OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST LENDER WITH RESPECT TO ANY ASSERTED CLAIM.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Term Loan Agreement (Acadia Realty Trust), Term Loan Agreement (Acadia Realty Trust)
Certain Waivers. Borrower hereby irrevocably and unconditionally waives (ai) To the fullest extent permitted by Applicable Lawpromptness and diligence, the Guarantor hereby expressly waives any and all rights or defenses arising by reason (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Lender hereunder or under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Loan Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim instrument relating hereto or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) thereto except to the extent otherwise provided herein, (iii) all other notices, demands and protests, and all other formalities of every kind in connection with the Standby Purchaser is relieved enforcement of Borrower's obligations hereunder and under the other Loan Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving Borrower of any of its obligations hereunder or under the Agreementother Loan Documents, (iv) any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral for the Loan or exhaust any right or take any action against Borrower, Guarantor shall similarly automatically or any other Person or against any collateral for the Loan, (v) any right or claim of right to cause a marshalling of Borrower's assets and without further action on the part (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or to any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Loan Document. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Term Loan Agreement (Acadia Realty Trust), Revolving Loan Agreement (Acadia Realty Trust)
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance of this Guaranty and Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice Lender) of the incurrence liability of the Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Guarantor’s liability hereunder; (d) any right to require the Lender to proceed against the Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the Lender ’s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; (f) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Standby Purchaser Guarantor under this Guaranty and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any other Person interested in kind or nature whatsoever with respect to the transactions contemplated by the AgreementGuaranteed Obligations, and all suretyship defenses generally (other than defenses to notices of acceptance of this Guaranty or of the payment existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Standby Purchaser under Guaranteed Obligations which might otherwise constitute a defense to the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Guarantor under this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Credit Agreement (Franklin Street Properties Corp /Ma/), Credit Agreement (Franklin Street Properties Corp /Ma/)
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense of the Borrower, any other Loan Party, or any other guarantor of the Guaranteed Obligations or any part thereof, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower (other than the defense that would otherwise the Guaranteed Obligations have been fully performed and paid in full in immediately available funds); (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any right to require any Secured Party to proceed against the Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the power of any Secured Party whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies remedies; (e) any benefit of and any right to participate in any security now or hereafter held by Members Mutual any Secured Party; (f) any fact or HoldCocircumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty (other than the defense that the Guaranteed Obligations have been fully performed and paid in full in immediately available funds); and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties (other than the defense that the Guaranteed Obligations have been fully performed and paid in full in immediately available funds). The Guarantor expressly waives promptnessall presentments, diligencedemands for payment or performance, notice notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty and or of the existence, creation or incurrence of new or additional Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may . This Guaranty shall not be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated affected by the Agreementgenuineness, and all suretyship defenses generally (other than defenses to the payment validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Standby Purchaser under Guaranteed Obligations which might otherwise constitute a defense to the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in Guarantor under this Guaranty is intended to modify or supersede (other than the notice provisions of defense that the Agreement.
(b) To the fullest extent permitted by Applicable LawGuaranteed Obligations have been fully performed and paid in full in immediately available funds), and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any foregoing (other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against than the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until defense that the Guaranteed Obligations shall have been satisfied in full. If any amount is fully performed and paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsfunds).
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Guaranty (TPG RE Finance Trust, Inc.), Guaranty (TPG RE Finance Trust, Inc.)
Certain Waivers. Guarantor, except as expressly set forth in this Guaranty, hereby waives and relinquishes all rights and remedies accorded by applicable law to sureties or guarantors and, except as expressly set forth in this Guaranty, agrees not to assert or take advantage of any such waived and relinquished rights or remedies, including:
(a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Beneficiary to proceed against or exhaust any other Person interested in the transactions contemplated security held by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.Beneficiary before proceeding against Guarantor;
(b) To any defense that may arise by reason of the fullest extent permitted by Applicable Lawincapacity, lack of authority, death or disability of any other person or the Guarantor hereby unconditionally and irrevocably agrees not failure of Beneficiary to exercise any rights that it may now have file or hereafter acquire enforce a claim against the Standby Purchaser estate (in administration, bankruptcy or any other Person interested in the transactions similar proceeding) of any other person;
(c) except as expressly contemplated by the Agreement that arise from herein demand, presentment, protest and notice of any kind, including without limitation notice of the existence, payment, performance, creation or enforcement incurring of any new or additional obligation or of any action or non-action on the part of the Guarantor’s obligations under Principal or in respect of this Guaranty or any Beneficiary (other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or than a breach by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved Beneficiary of any of its obligations under the Agreementapplicable Guaranteed Document);
(d) any defense based upon an election of remedies by Beneficiary which destroys or otherwise impairs the subrogation rights of Guarantor, the right of Guarantor shall similarly automatically and without further action to proceed against the Principal for reimbursement, or both;
(e) any duty on the part of Beneficiary to disclose to Guarantor any Person be relieved facts Beneficiary may now or hereafter know about the Principal, regardless of its corresponding Guaranteed Obligations under this Guaranty in respect of whether Beneficiary has reason to believe that any such relieved obligations.
(c) The facts materially increase the risk beyond that which Guarantor intends to assume, or has reason to believe that such facts are unknown to Guarantor, or has a reasonable opportunity to communicate such facts to Guarantor, since Guarantor acknowledges that it will receive substantial direct Guarantor is fully responsible for being and indirect benefits from keeping informed of the transactions contemplated financial condition of the Principal and of all circumstances bearing on the risk of non-payment of any Obligations hereby guaranteed;
(f) any defense arising because of Beneficiary’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code;
(g) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code;
(h) demands, diligence, presentment, notices and any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than performance of and/or compliance with the terms of such Obligations by the Agreement Guarantor and/or the person whose performance and compliance is being guaranteed);
(i) all rights, setoffs, counterclaims and defenses to which the Principal is or may be entitled under the Guaranteed Document arising from or out of the Guaranteed Document or at law or in equity; and
(j) any defense based upon any statute or rule of law which provides that the waivers set forth obligation of a surety must be neither larger in this Guaranty are knowingly made amount nor in contemplation other respects more burdensome than that of such benefitsa principal.
Appears in 2 contracts
Sources: Credit Agreement (MN8 Energy, Inc.), Credit Agreement (New PubCo Renewable Power Inc.)
Certain Waivers. Each Guarantor waives, in each case to the extent permitted under any Applicable Law:
(a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against the fullest extent permitted Borrower, any other Guarantor or guarantor or the Collateral or any other collateral for the Guaranteed Obligations;
(b) all defenses (other than payment of the Guaranteed Obligations) to, and all setoffs, counterclaims and claims of recoupment against, the Guaranteed Obligations that may at any time be available to the Borrower or any other Guarantor or guarantor;
(i) notice of acceptance of and intention to rely on the Loan Documents, (ii) notice of the making or renewal of any Loans, the issuance of any Letters of Credit or other extensions of credit hereunder and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 10.07 and (iv) all other notices that may be required by Applicable LawLaw or otherwise to preserve any rights against such Guarantor under the Loan Documents, including any notice of default, demand, dishonor, presentment and protest;
(d) any defense based upon, arising out of or in any way related to (i) any claim that any sale or other disposition of the Guarantor hereby expressly waives Collateral or any other collateral for the Guaranteed Obligations was not conducted in a commercially reasonable fashion or that a public sale, should the Guaranteed Parties have elected to so proceed, was, in and all rights or defenses arising by reason of itself, not a commercially reasonable method of sale, (ii) any Applicable Law claim that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed ObligationsParties, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of including the incurrence exercise by the Guaranteed Parties of any of rights against the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Collateral or any other Person interested in the transactions contemplated by the Agreementcollateral, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations impaired, reduced, released or otherwise extinguished any right that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the such Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now might otherwise have or hereafter acquire had against the Standby Purchaser Borrower, any other Guarantor or any other Person interested in guarantor or against the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Collateral or any other agreement in connection herewithcollateral, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 10.07 and (iiiv) to any claim that the extent Loan Documents should be strictly construed against the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.Parties; and
(ce) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (e), BE AVAILABLE TO A GUARANTOR OR THIRD PARTY SURETY AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS UNDER THIS ARTICLE 10.
Appears in 2 contracts
Sources: Credit Agreement (Garden State Newspapers Inc), Credit Agreement (Garden State Newspapers Inc)
Certain Waivers. Each Guarantor acknowledges and agrees that (a) To the fullest extent permitted by Applicable Law, guaranty given hereby may be enforced without the Guarantor hereby expressly waives any and all rights necessity of resorting to or defenses arising by reason otherwise exhausting remedies in respect of any Applicable Law that would otherwise require other security or Collateral interests, and without the necessity at any election time of remedies by Members Mutual having to take recourse against the Borrowers hereunder or HoldCo. The Guarantor waives promptnessagainst any Collateral securing the Credit Party Obligations or otherwise, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, (b) it will not assert any right to require the marshalling of assets of action first be taken against the Standby Purchaser Borrowers or any other Person interested (including any other Guarantor) or pursuit of any other remedy or enforcement any other right, (c) it will not assert any defenses (i) with respect to any change in the transactions contemplated by the Agreementcorporate existence or structure of any Borrower, and all suretyship defenses generally (other than defenses ii) with respect to the payment any Law of any jurisdiction or any event affecting any term of the Guaranteed Obligations obligations of each Guarantor under this Section or (iii) as a result or related to any other circumstance that are available to the Standby Purchaser under the Agreement or might constitute a material breach by a Guaranteed Party or its Affiliates defense of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceGuarantor, payment, performance, (d) it will not assert any claims or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off rights that such Guarantor may have, (e) nothing contained herein shall prevent or in limit action being taken against the Borrowers hereunder, under the other Credit Documents or the other documents and agreements relating to the Credit Party Obligations or from foreclosing on any security or Collateral interests relating hereto or thereto, or from exercising any other mannerrights or remedies available in respect thereof, payment or security on account if neither the Borrowers nor the Guarantors shall timely perform their obligations, and the exercise of any such claimrights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors’ obligations hereunder unless as a result thereof, remedy or right, unless and until the Guaranteed Credit Party Obligations shall have been satisfied paid in full. If full and the commitments relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances and (f) it will not seek, and hereby waives any amount is paid right, to have the Guarantor in violation Collateral or any part thereof marshaled upon any foreclosure or other disposition of the immediately preceding sentence at any time prior Collateral. Each Guarantor agrees that such Guarantor shall have no right of recourse to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust security for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Credit Party Obligations, in accordance with except through the terms exercise of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms rights of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser subrogation pursuant to Section 9.2 and through the terms and conditions exercise of the Agreement and (ii) rights of contribution pursuant to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSection 9.6.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Credit Agreement (Checkpoint Systems Inc), Credit Agreement (Checkpoint Systems Inc)
Certain Waivers. The Administrative Borrower waives (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require disability or other defense of any election of remedies by Members Mutual Loan Party or HoldCo. The Guarantor waives promptnessany Foreign Swap Obligor, diligence, notice or the cessation from any cause whatsoever (including any act or omission of the acceptance of this Guaranty and Administrative Agent or any other Secured Party) of the Guaranteed Obligations, presentment, demand for payment, notice liability of non-performance, default, dishonor and protest, notice any Loan Party or any Foreign Swap Obligor; (b) any defense based on any claim that the Administrative Borrower’s obligations under this Borrower Guaranty exceed or are more burdensome than those of the incurrence Guarantors or any Foreign Swap Obligor; (c) the benefit of any statute of limitations affecting the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Administrative Borrower’s liability under this Borrower Guaranty; (d) any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested Secured Party to proceed against any other Loan Party or any Foreign Swap Obligor, proceed against or exhaust any security for the Guarantor Primary Obligations or Foreign Subsidiary F/X Obligations, or pursue any other remedy in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Administrative Agent’s or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement Secured Parties’ power whatsoever; (e) any benefit of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy of Members Mutual hereafter held by the Administrative Agent or HoldCo against any other Secured Party; and (f) to the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common fullest extent permitted by law, includingany and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the than payment in full in immediately available funds cash of all Obligations (other than unasserted contingent obligations not yet due) and termination of all Commitments. For so long as any Obligations remain outstanding, the Guaranteed Obligations under this GuarantyAdministrative Borrower expressly waives all setoffs and counterclaims and all presentments, such amount shall be received demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and held in trust for the benefit all other notices or demands of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid any kind or delivered to Members Mutual or HoldCo in the same form as so received (nature whatsoever with any necessary endorsement or assignment) to be credited and applied respect to the Guaranteed Subsidiary Obligations, in accordance with the terms and all notices of acceptance of this Borrower Guaranty or of the Agreement. Notwithstanding anything to the contrary contained in this Guarantyexistence, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, creation or release incurrence of new or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any additional Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSubsidiary Obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Credit Agreement (Alexion Pharmaceuticals Inc), Credit Agreement (Alexion Pharmaceuticals Inc)
Certain Waivers. Borrower hereby irrevocably and unconditionally waives (ai) To the fullest extent permitted by Applicable Lawpromptness and diligence, the Guarantor hereby expressly waives any and all rights or defenses arising by reason (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Lender hereunder or under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Loan Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim instrument relating hereto or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) thereto except to the extent otherwise provided herein, (iii) all other notices, demands and protests, and all other formalities of every kind in connection with the Standby Purchaser is relieved enforcement of Borrower’s obligations hereunder and under the other Loan Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving Borrower of any of its obligations hereunder or under the Agreementother Loan Documents, (iv) any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral for the Loan or exhaust any right or take any action against Borrower, Guarantor shall similarly automatically or any other Person or against any collateral for the Loan, (v) any right or claim of right to cause a marshalling of Borrower’s assets and without further action on the part (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or to any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Loan Document. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Revolving Loan Agreement (Acadia Realty Trust), Loan Agreement (Acadia Realty Trust)
Certain Waivers. (a) Guarantor hereby waives notice of acceptance of this Limited Guaranty and notice of the Guarantor Obligations, waives presentment, demand for payment, protest, notice of dishonor or nonpayment of the applicable Buyer Obligations, notice of acceleration or intent to accelerate the applicable Buyer Obligations, and any other notice to Buyer, and waives suretyship defenses generally (other than fraud or Intentional Breach by Seller or any of its Subsidiaries or Affiliates, defenses to the payment of the applicable Buyer Obligations under the Purchase Agreement that are available to Buyer arising from Seller’s breach of the Purchase Agreement (but specifically excluding any defenses arising from the bankruptcy, insolvency or similar rights of Buyer, or defenses related to Buyer’s capacity to enter into the Purchase Agreement) or breach by Seller of this Limited Guaranty), and Seller is not obligated to file any suit or take any action, or provide any notice to Buyer or Guarantor, or others, except, in each case, as expressly provided in the Purchase Agreement or in this Limited Guaranty. Without limiting the generality of the foregoing, Guarantor agrees that the Guarantor Obligations hereunder shall not be released or discharged, in whole or in part, or otherwise affected by: (a) the failure of Seller to assert any claim or demand or to enforce any right or remedy against Buyer with respect to the applicable Buyer Obligations, (b) any extensions or renewals of the applicable Buyer Obligations; (c) any rescissions, waivers, amendments or modifications of the Purchase Agreement; (d) the adequacy of any means available to Seller to claim payment or performance of the applicable Buyer Obligations; (e) any change in the corporate (or other applicable entity) existence, structure or ownership of Buyer or any other Person liable with respect to any of the applicable Buyer Obligations; (f) any insolvency, bankruptcy, reorganization or other similar proceedings affecting Buyer or any other Person liable with respect to any of the applicable Buyer Obligations; (g) the existence of any claim, set-off or other rights which Guarantor may have at any time against Buyer, whether in connection with the applicable Buyer Obligations or otherwise; (h) the adequacy of any other means Seller may have of obtaining repayment of any of the applicable Buyer Obligations; (i) except as otherwise provided herein, the addition or release of any Person or entities primarily or secondarily liable for the applicable Buyer Obligations; (j) any discharge of the Guarantor as a matter of law (other than as a result of payment of the Guarantor Obligations in accordance with their terms); or (k) the addition, substitution or release of any person interested in the transactions contemplated by the Purchase Agreement. To the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that law which would otherwise require any election of remedies by Members Mutual the Seller. However, Guarantor reserves the right to assert defenses that Buyer may have to payment or HoldCoperformance of the applicable Buyer Obligations under the express terms of the Purchase Agreement, other than defenses arising from the bankruptcy, insolvency or similar rights of Buyer, or defenses related to Buyer’s capacity to enter into the Purchase Agreement. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty acknowledges that it will receive substantial direct and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in indirect benefits from the transactions contemplated by the Agreement, Purchase Agreement and all suretyship defenses generally (other than defenses to that the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained waivers set forth in this Limited Guaranty is intended to modify or supersede the notice provisions are knowingly made in contemplation of the Agreementsuch benefits.
(b) To the fullest extent permitted by Applicable Law, the The Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement Buyer that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guaranty or any other agreement in connection herewiththerewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo Seller against the Standby Purchaser Buyer or such other PersonPerson in respect of claims of Seller, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser Buyer or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Guarantor Obligations and all other amounts payable under this Limited Guaranty shall have been satisfied previously paid in fullfull in immediately available funds. If any amount is shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Guaranteed Obligations under this GuarantyGuarantor Obligations, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Seller, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo the Seller in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Guarantor Obligations, in accordance with the terms of the Purchase Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense towhether matured or unmatured, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of held as collateral for any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsthereafter arising.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Limited Guaranty, Limited Guaranty (Colony Financial, Inc.)
Certain Waivers. The Guarantor waives (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense (other than the defense that would otherwise require the Senior Secured Obligations shall have been fully and finally performed and paid in full in cash, to the extent of any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice such payment) of the acceptance of this Guaranty and Borrower, any subsidiary of the Guaranteed ObligationsBorrower, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence or any other guarantor of any of the Guaranteed Senior Secured Obligations, all defenses which may be available by virtue or the cessation from any cause whatsoever (including any act or omission of any valuation, stay, moratorium law Secured Party) of the liability of the Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or other similar law now or hereafter in effect, are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any right to require the marshalling of assets of Collateral Agent to proceed against the Standby Purchaser Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other Person interested remedy in the transactions contemplated by the Agreement, and all suretyship defenses generally Collateral Agent’s power whatsoever; (other than defenses to the payment e) any benefit of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy hereafter held by the Collateral Agent on behalf of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common Secured Parties; and (f) to the fullest extent permitted by law, includingany and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. The Guarantor expressly waives all setoffs and counterclaims and all presentments, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, demands for payment or security on account performance, notices of such claimnonpayment or nonperformance, remedy protests, notices of protest, notices of dishonor, and all other notices or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If demands of any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid kind or delivered to Members Mutual or HoldCo in the same form as so received (nature whatsoever with any necessary endorsement or assignment) to be credited and applied respect to the Guaranteed Obligations, in accordance with the terms and all notices of acceptance of this Guaranty or of the Agreementexistence, creation, or incurrence of new or additional Guaranteed Obligations. Notwithstanding anything the foregoing, nothing set forth herein shall alter or modify such Guarantor’s right to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, receive notice of any payment by the Guarantor matter under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Financing Documents.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Continuing Guaranty Agreement (Allied Capital Corp), Continuing Guaranty Agreement (Allied Capital Corp)
Certain Waivers. Each Guarantor waives (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance Borrower, any other Loan Party or any other guarantor of this Guaranty the Guaranteed Obligations or any part thereof, or the cessation from any cause whatsoever (including any act or omission of any Creditor Party) of the liability of the Borrower (other than the defense of prior payment and performance in full of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice ); (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the incurrence Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any requirement to proceed against the Borrower or any other Loan Party, proceed against or exhaust any security for the Guaranteed Obligations, all defenses which may be available by virtue or pursue any other remedy in the power of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Creditor Party whatsoever; (e) any right to require the marshalling benefit of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy of Members Mutual or HoldCo against hereafter held by any Creditor Party; and (f) to the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common fullest extent permitted by law, including, without limitation, any and all other defenses (other than the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, defense of prior payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment performance in full in immediately available funds of the Guaranteed Obligations under this GuarantyObligations) or benefits that may be derived from or afforded by Applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and non-compulsory counterclaims (provided, that the foregoing waiver shall not be deemed a waiver of such amount shall be received Guarantor’s right to assert any claim that would constitute a setoff or counterclaim against any Person in any separate action or proceeding) and held in trust all presentments, demands for the benefit payment or performance, notices of Members Mutual nonpayment or nonperformance, protests, notices of protest, notices of dishonor and HoldCo, shall be segregated from all other property and funds notices or demands of the Guarantor and shall forthwith be paid any kind or delivered to Members Mutual or HoldCo in the same form as so received (nature whatsoever with any necessary endorsement or assignment) to be credited and applied respect to the Guaranteed Obligations, in accordance with the terms and all notices of acceptance of this Guaranty or of the Agreement. Notwithstanding anything to the contrary contained in this Guarantyexistence, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, creation or release incurrence of new or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any additional Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsObligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Credit Agreement (Getty Realty Corp /Md/), Credit Agreement (Getty Realty Corp /Md/)
Certain Waivers. To the extent permitted by applicable law, the Guarantor waives (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance of this Guaranty and of Borrower, or the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence cessation from any cause whatsoever (including any act or omission of any of the Buyers, Collateral Agent or Trustee) of the liability of the Borrower (other than satisfaction in full of the Guaranteed Obligations, all defenses which may be available Obligations whether by virtue payment or conversion of the Notes into Common Stock of the Borrower in accordance with the terms of the Notes); (b) any valuation, stay, moratorium law defense based on any claim that the Guarantor’s obligations exceed or other similar law now or hereafter in effect, are more burdensome than those of the Borrower; (c) any right to require the marshalling of assets of Buyers, Collateral Agent or Trustee to proceed against the Standby Purchaser Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other Person interested remedy in the transactions contemplated by the Agreement, and all suretyship defenses generally their power whatsoever; (other than defenses to the payment d) any benefit of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy hereafter held by the Collateral Agent and/or Trustee; and (e) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of Members Mutual or HoldCo against the Standby Purchaser exonerating guarantors or such sureties (other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment than satisfaction in full in immediately available funds of the Guaranteed Obligations under Obligations), except to the extent that such defense relates to an election of remedies constituting gross negligence or willful misconduct by the Collateral Agent and/or Trustee. The Guarantor hereby absolutely, unconditionally and irrevocably waives, to the fullest extent permitted by law, (i) promptness, diligence, notice of acceptance and any other notice with respect to this GuarantyGuarantee, such amount shall be received (ii) presentment, demand of payment, protest, notice of dishonor or nonpayment and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from any other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (notice with any necessary endorsement or assignment) to be credited and applied respect to the Guaranteed Obligations, in accordance with (iii) any requirement that the terms of Buyers, Collateral Agent or Trustee take any action against the Agreement. Notwithstanding anything Borrower or any other person or entity, (iv) all setoffs and considerations, and (v) any other action, event or precondition to the contrary contained in enforcement of this Guaranty, Members Mutual and HoldCo hereby agree that (i) Guarantee or the Guarantor may assert, as a defense to, or release or discharge of, any payment performance by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationshereunder.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 2 contracts
Sources: Guarantee (Pegasi Energy Resources Corporation.), Guarantee (Pegasi Energy Resources Corporation.)
Certain Waivers. The Guarantor waives:
(a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against any of the fullest extent permitted Account Parties or any collateral for the Guaranteed Obligations;
(b) all defenses to, and all setoffs, counterclaims and claims of recoupment against, the Guaranteed Obligations that may at any time be available to any other Guarantor (and agrees that payments due from the Guarantor hereunder shall be made without any reduction or deduction whatsoever, including any reduction or deduction for any setoff, counterclaim or claim of recoupment otherwise available to the Guarantor or to any of the Account Parties);
(i) notice of acceptance of and intention to rely hereunder, (ii) notice of the making or renewal of any Loans or other extensions of credit hereunder and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 7.05 and (iv) all other notices that may be required by Applicable Law, Law or otherwise to preserve any rights against the Guarantor hereby expressly waives hereunder, including any notice of default, demand, dishonor, presentment and all rights protest;
(d) diligence;
(e) any defense based upon, arising out of or defenses arising by reason in any way related to (i) any claim that any sale or other disposition of any Applicable Law collateral for the Guaranteed Obligations was not conducted in a commercially reasonable fashion or that would otherwise require a public sale, should the Guaranteed Parties have elected so to proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed ObligationsParties, presentmentincluding the exercise by the Guaranteed Parties of any rights against any collateral, demand for paymentimpaired, notice of non-performancereduced, default, dishonor and protest, notice of released or otherwise extinguished any right that the incurrence of Guarantor might otherwise have had against any of the Guaranteed ObligationsAccount Parties or against any collateral, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 7.05 and (iiiv) to any claim that the extent Loan Documents should be strictly construed against the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.Parties; and
(cf) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsALL OTHER DEFENSES UNDER ANY APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO THE GUARANTOR AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS LIABILITIES AND OBLIGATIONS HEREUNDER.
Appears in 1 contract
Sources: Credit Agreement (Reinsurance Group of America Inc)
Certain Waivers. Each of the Guarantors waives:
(a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against either Borrower or any collateral for the fullest extent permitted Guaranteed Obligations;
(b) all defenses to, and all setoffs, counterclaims and claims of recoupment against, the Guaranteed Obligations that may at any time be available to any other Guarantor (and agrees that payments due from such Guarantor hereunder shall be made without any reduction or deduction whatsoever, including any reduction or deduction for any setoff, counterclaim or claim of recoupment otherwise available to such Guarantor or to either Borrower);
(i) notice of acceptance of and intention to rely hereunder, (ii) notice of the making or renewal of any Loans or other extensions of credit hereunder and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 8.05 and (iv) all other notices that may be required by Applicable LawLaw or otherwise to preserve any rights against any Guarantor hereunder, the Guarantor hereby expressly waives including any notice of default, demand, dishonor, presentment and all rights protest;
(d) diligence;
(e) any defense based upon, arising out of or defenses arising by reason in any way related to (i) any claim that any sale or other disposition of any Applicable Law collateral for the Guaranteed Obligations was not conducted in a commercially reasonable fashion or that would otherwise require a public sale, should the Guaranteed Parties have elected so to proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed ObligationsParties, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of including the incurrence exercise by the Guaranteed Parties of any of the Guaranteed Obligationsrights against any collateral, all defenses which may be available by virtue of any valuationimpaired, stayreduced, moratorium law released or other similar law now or hereafter in effect, otherwise extinguished any right to require the marshalling of assets of the Standby Purchaser that any Guarantor might otherwise have had against either Borrower or against any other Person interested in the transactions contemplated by the Agreementcollateral, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 8.06 and (iiiv) to any claim that the extent Loan Documents should be strictly construed against the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.Parties; and
(cf) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsALL OTHER DEFENSES UNDER ANY APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO ANY GUARANTOR AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS LIABILITIES AND OBLIGATIONS HEREUNDER.
Appears in 1 contract
Certain Waivers. (a) To Effective upon the Applicable Closing, each Purchaser and Seller, for itself and on behalf of its Affiliates and their respective current or former officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors and permitted assigns (collectively, the “Releasing Party”), intends to and acknowledges and agrees that, from and after the Applicable Closing, to the fullest extent permitted by Applicable under applicable Law, including by contractually shortening the Guarantor hereby expressly waives applicable statute of limitations, any and all rights or defenses arising by reason rights, claims and causes of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessaction it may have against the other Party, diligenceits Affiliates (including, notice in the case of the acceptance of this Guaranty Purchasers from and after the Applicable Closing, the applicable members of the Guaranteed ObligationsAcquired Group) and its and their respective officers, presentmentdirectors, demand for paymentemployees, notice of non-performancepartners, defaultmembers, dishonor managers, agents, attorneys, representatives, successors and protest, notice permitted assigns (the “Released Parties”) relating to the operation of the incurrence of any members of the Guaranteed ObligationsAcquired Group, all defenses which may be available by virtue of the Purchased Assets or the Business, in each case, arising at or prior to the Applicable Closing, whether arising under, or based upon, any valuationLaw (including any right, stay, moratorium whether arising at law or other similar law now or hereafter in effectequity, any right to require the marshalling of assets of the Standby Purchaser seek indemnification, contribution, cost recovery, damages or any other Person interested in the transactions contemplated by the Agreementrecourse or remedy, and all suretyship defenses generally (including as may arise under common law or CERCLA or any other than defenses to the payment of the Guaranteed Obligations that Environmental Law) are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubthereby irrevocably waived; provided, the parties agree however, that nothing contained herein shall operate to release any Liabilities of any Party arising under any Transaction Document (including this Article X) or in this Guaranty is intended respect of Liabilities for Fraud by or on behalf of any Released Party. Each Releasing Party hereby irrevocably covenants to modify refrain from, directly or supersede the notice provisions indirectly, asserting any claim or demand, or commencing, instituting or causing to be commenced, any proceeding of the Agreementany kind against any Released Party, based upon any matter purported to be released hereby.
(b) To Purchaser and Seller acknowledge and agree that the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary agreements contained in this Guaranty, Members Mutual Section 10.07 and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms representations and warranties contained in Section 2.23 and Section 3.09 are an integral part of the Agreement (including, without limitation, any such claim or defense if available that any Transactions and the inducement of the Guaranteed Obligations (up Parties to consummate the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsTransactions.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Hanesbrands Inc.)
Certain Waivers. Pledgor hereby waives and relinquishes, to the maximum extent permitted by applicable law, all rights and remedies accorded to pledgors, sureties or guarantors and agrees not to assert or take advantage of any such rights or remedies, including:
(a) To any law limiting remedies, including recovery of a deficiency against the fullest extent permitted Borrowers, under an obligation secured by Applicable Lawa mortgage or deed of trust on real property if the real property is sold under a power of sale contained in the mortgage or deed of trust, the Guarantor hereby expressly waives any and all rights or defenses arising by reason based on any loss whether as a result of any Applicable Law that would otherwise require any election of remedies by Members Mutual such sale or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, otherwise;
(b) any right to require Collateral Agent to proceed against the marshalling of assets of the Standby Purchaser Borrowers or any other Person interested or to proceed against or exhaust any security held by Collateral Agent at any time or to pursue any other remedy in Collateral Agent’s power before proceeding against the transactions contemplated Collateral;
(c) any defense that may arise by the Agreement, and all suretyship defenses generally (other than defenses to the payment reason of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement incapacity, lack of power or a material breach by a Guaranteed Party authority, death, dissolution, merger, termination or its Affiliates disability of the last sentence of Section 8 of this Guaranty). For the avoidance of doubtPledgor, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested or the failure of Collateral Agent or any Secured Party to file or enforce a claim against the estate (in the transactions contemplated by the Agreement that arise from the existenceadministration, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty bankruptcy or any other agreement in connection herewith, including, without limitationproceeding) of Pledgor, any Borrower or any other Person;
(d) any right of subrogation, reimbursement, exoneration, contribution to enforce any remedy that Collateral Agent may have against any Borrower or indemnification any other Person and any right to participate in any claim or remedy security held by Collateral Agent until the Obligations have been paid and the covenants of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or Credit Documents have been performed in full;
(e) any right arises in equity or under contract, statute or common lawto require Collateral Agent to give any notices of any kind, including, without limitation, notices of nonpayment, nonperformance, protest, dishonor, default, delinquency or acceleration, or to make any presentments, demands or protests, except as set forth herein or expressly provided in the Credit Agreement or any of the Credit Documents;
(f) any right to take assert the bankruptcy or receive from insolvency of the Standby Purchaser Borrowers or any other Person as a defense hereunder or as the basis for rescission hereof and any defense arising because of Collateral Agent’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code;
(g) subject to Section 8.9, any right under any law purporting to reduce Pledgor’s obligations hereunder if the Obligations are reduced other than as a result of payment of such Obligations;
(h) any defense based on the repudiation of the Credit Documents by any Borrower or any other Person, directly the failure by Collateral Agent or indirectlyany Secured Party to enforce any claim against Pledgor, any Borrower or any other Person or the unenforceability in cash whole or other property or by set-off in part of any Credit Documents;
(i) all suretyship and guarantor’s defenses generally;
(j) any right to insist upon, plead or in any other mannermanner whatever claim or take the benefit or advantage of, payment any appraisal, valuation, stay, extension, marshaling of assets, redemption or security on account of such claimsimilar law, remedy or rightexemption, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence whether now or at any time prior to hereafter in force, which may delay, prevent or otherwise affect the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment performance by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any Pledgor of its obligations under under, or the enforcement by Collateral Agent of, this Agreement;
(k) any requirement on the part of Collateral Agent to mitigate the damages resulting from any default;
(l) any defense based upon an election of remedies by Collateral Agent, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of Pledgor, the Guarantor shall similarly automatically and without further action right of Pledgor to proceed against any Borrower or another Person for reimbursement, or both;
(m) any defense based on any offset against any amounts which may be owed by any Person to Pledgor for any reason whatsoever;
(n) any defense based on any act, failure to act, delay or omission whatsoever on the part of any Person Borrower or any of their Affiliates or the failure by any Borrower or any of their Affiliates to do any act or thing or to observe or perform any covenant, condition or agreement to be relieved of its corresponding Guaranteed Obligations observed or performed by it under this Guaranty in respect of such relieved obligations.the Credit Documents;
(co) The Guarantor acknowledges any defense, setoff or counterclaim which may at any time be available to or asserted by any Borrower or any of their Affiliates against Collateral Agent or any Secured Party or any other Person under the Credit Documents;
(p) any duty on the part of Collateral Agent to disclose to Pledgor any facts Collateral Agent may now or hereafter know about any Borrower or any of their Affiliates, regardless of whether Collateral Agent has reason to believe that it will receive substantial direct and indirect benefits any such facts materially increase the risk beyond that which Pledgor intends to assume, or have reason to believe that such facts are unknown to Pledgor, or have a reasonable opportunity to communicate such facts to Pledgor;
(q) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent or departure from the transactions contemplated by terms of the Agreement and that Credit Documents; and
(r) any defense based upon any borrowing or grant of a security interest under Section 364 of Title 11 of the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsUnited States Code.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Lawapplicable law, the each Guarantor hereby expressly expressly, unconditionally and irrevocably waives any and all rights or defenses arising by reason of any Applicable Law that applicable law (including by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect) which would otherwise require any election of remedies by Members Mutual or HoldCothe Guaranteed Party. The Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Limited Guarantee and acknowledges that this Limited Guarantee is continuing in nature and applies to all presently existing and future Guaranteed Obligations. Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of the acceptance of this Guaranty Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence any Guaranteed Obligations incurred and all other notices of any of kind (except for notices to be provided to Parent in accordance with the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effectMerger Agreement), any right to require the marshalling of assets of the Standby Purchaser Parent or any other Person interested in the transactions contemplated by the AgreementMerger Sub, and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its Subsidiaries, defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Parent or Merger Sub under the Merger Agreement or a material breach by a the Guaranteed Party or its Affiliates of this Limited Guarantee, each of the last sentence of Section 8 of this Guarantyforegoing defenses being retained by each Guarantor). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guaranty Limited Guarantee are knowingly made in contemplation of such benefits. Without limiting the foregoing, each Guarantor hereby irrevocably waives any defenses to enforcement it may have (now or in the future) by reason of:
(a) any illegality or lack of validity or enforceability of any Guaranteed Obligation, the Merger Agreement or any related agreement or instrument;
(b) the failure of any other Person to execute or deliver this Limited Guarantee or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or
(c) any eventuality described in clauses (a) through (g) of Section 3 hereof. Except for (a) the Company’s right to be paid (i) the Parent Termination Fee pursuant to Section 9.4(d) of the Merger Agreement, (ii) any additional amounts that may be payable by Parent pursuant to Section 9.4(e) of the Merger Agreement, (iii) any reimbursement of expense or indemnification of the Company that Parent may be obligated to provide pursuant to Section 7.9(b) of the Merger Agreement and (iv) any amount that may be payable by Parent or Merger Sub as monetary damages resulting from fraud (as determined by the final and nonappealable judgment of a court of law) pursuant to Section 9.3(b) of the Merger Agreement;
(b) the Company’s right to seek specific performance pursuant to Section 10.16 of the Merger Agreement; or (c) claims against the Guarantors, Guarantor Affiliates for their own fraud, the Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its Controlled Affiliates not to institute in the name of or on behalf of the Guaranteed Party or any other Person, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby, against any of the Guarantors or any Guarantor Affiliates (as defined below). Each Guarantor covenants and agrees that it shall not institute, and shall cause its affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable, in whole or in part. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against, any Person liable for any of the Guaranteed Obligations prior to proceeding against the Guarantors hereunder. For purposes of this Limited Guarantee, “Controlled Affiliate” of any Person means any affiliate that such Person directly or indirectly controls (within the meaning of Rule 12b-2 of the United States Securities and Exchange Act of 1934, as amended) and, for purposes of this Limited Guarantee, includes the directors and officers of such Person when acting in their respective capacities as such.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Lawthis Lease Agreement is --------------- interpreted to be a guarantee of the Notes, the Guarantor Lessee hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, waives:
(i) notice of the acceptance by the Lessee of this Guaranty Lease Agreement and the other Transaction Documents;
(ii) notice of the Guaranteed Obligations, existence or creation or non-payment of all or any of the obligations under this Lease Agreement or the other Transaction Documents;
(iii) presentment, demand for paymentdemand, notice of non-performancedishonor, default, dishonor and protest, notice of protest and all other notices whatsoever;
(iv) all diligence in collection or protection of or realization upon the incurrence obligations under this Lease Agreement or the other Transaction Documents or any thereof, any obligation hereunder or any security for or guaranty of any of the Guaranteed Obligationsforegoing;
(v) any right to direct or affect the manner or timing of either the Agent's or a Lender's enforcement of its rights or remedies;
(vi) any defense, right of set-off or other claim whatsoever (other than payment in full and performance in full of all of the obligations under this Lease Agreement or under any other Transaction Documents in accordance with the terms hereof or thereof) that the Lessee or any third party may or might have to the payment or performance of the obligations under the Transaction Documents;
(vii) any and all benefits and defenses to or discharges of liability that may arise from any insolvency, bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, liquidation, or similar proceeding with respect to the Lessor or the Lessee;
(viii) any and all defenses which may be available by virtue would otherwise arise upon the occurrence of any valuation, stay, moratorium law Event of Default hereunder or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or under any other Person interested in Transaction Document, or upon the transactions contemplated taking of any action by the AgreementAgent or the Lenders permitted hereunder or thereunder;
(ix) any defense, and all suretyship defenses generally right of set-off, claim or counterclaim whatsoever (other than payment and performance in full of all of the obligations under this Lease Agreement or the other Transaction Documents in accordance with the terms hereof or thereof and the documents securing those obligations), and any and all other rights, benefits, protections and other defenses which the Lessee may have, now or at any time hereafter, to full payment or performance of the obligations pursuant to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 terms of this Guaranty). For Lease Agreement and the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewithTransaction Documents, including, without limitation, under California Civil Code Sections 2809, 2810, 2819, 2821, 2845, 2849, 2850 and 2855, and California Code of Civil Procedure Sections 580a, 580b and 580d, and all successor sections;
(x) any and all defenses against any claim by the Agent or any Lender following the Agent's or any Lender's nonjudicial foreclosure of any Mortgage securing the obligations under this Lease Agreement or the other Transaction Documents, including, but not limited to, the defense that would otherwise have been available to the Lessee by virtue of the Agent's or any Lender's nonjudicial foreclosure of such Mortgage having destroyed the right to pursue a deficiency against the Lessor, to which the Lessee would have otherwise been subrogated, in accordance with California Civil Code Section 580(d), or any subsequent enactments, modifications, and recodifications thereof; and
(xi) all other principles or provisions of Law, if any, that conflict with the terms of this Lease Agreement or the other Transaction Documents, including, without limitation, the effect of any circumstances that may or might constitute a legal or equitable discharge of a guarantor or surety.
(b) In addition to the specific waivers set forth in this Section 21, the Lessee does hereby waive and shall have no right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo indemnity against the Standby Purchaser Lessor or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other mannerPerson for any reason, payment including but not limited to, by reason of any payments made or security on account of such claim, remedy or right, unless and until acts performed by the Guaranteed Obligations shall have been satisfied Lessee in full. If any amount is paid to compliance with the Guarantor in violation obligations of the immediately preceding sentence at Lessee hereunder or any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment actions taken by the Guarantor under Agent or any Lender pursuant to this Guaranty, any claim, set-off, deduction, defense Lease Agreement or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Transaction Documents.
(c) The Guarantor acknowledges that Nothing contained in this Lease Agreement or the other Transaction Documents shall prevent the Agent or any Lender from suing to collect on the obligations under this Lease Agreement or the other Transaction Documents or from exercising concurrently or successively any rights available to it will receive substantial direct and indirect benefits from at law or in equity or under any of the transactions contemplated by the Agreement Transaction Documents, and that the waivers set forth exercise of any of the aforesaid rights shall not constitute a legal or equitable discharge of the Lessee. The Lessee hereby authorizes and empowers the Agent or any Lender to exercise, in its sole discretion, any rights and remedies, or any combination thereof, which may then be available, since it is the intent and purpose of the Lessee that the obligations hereunder shall be absolute, independent, and unconditional under any and all circumstances. Notwithstanding any foreclosure of the lien of any deed of trust or security agreement with respect to any or all of any real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by the acceptance of a deed or possession of any other collateral in lieu of foreclosure, the Lessee shall remain bound under this Guaranty are knowingly made in contemplation of such benefitsLease Agreement and the other Transaction Documents.
Appears in 1 contract
Certain Waivers. (a) To Notwithstanding any payment or payments made by any Person hereunder or as a result of the fullest extent permitted operation of this Agreement or any set-off or application of funds of the Special Limited Partner by Applicable LawAgent or any Lender (or any cure made by the Special Limited Partner), the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of Special Limited Partner shall not be entitled to be subrogated to any of the Guaranteed Obligationsrights of Agent or any Lender against any Person, all defenses which may nor shall the Special Limited Partner seek or be available by virtue of entitled to seek any valuation, stay, moratorium law contribution or other similar law now or hereafter in effect, reimbursement from any right to require the marshalling of assets of the Standby Purchaser Loan Party or any other Person interested in the transactions contemplated respect of such payments made by the AgreementSpecial Limited Partner, in each case unless and all suretyship defenses generally until repayment of the Obligations (other than defenses contingent indemnification Obligations with respect to which no claim has been asserted and any Obligations under Letters of Credit that have been Cash Collateralized or otherwise backstopped (including by “grandfathering” into future credit facilities) in a manner reasonably satisfactory to the payment of Administrative Agent and each applicable L/C Issuer) has occurred and the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement Commitments have expired or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreementbeen terminated.
(b) To Notwithstanding the fullest existence of the Subordinated Obligations or any provisions of the Loan Documents to the contrary, Agent and the Lenders shall be free to grant or withhold consents and approvals, make or withhold advances, provide notices, and otherwise deal with the Loan Documents in the same manner and to the same extent permitted as if the Subordinated Obligations do not exist. Without limiting the foregoing, neither Agent, nor any Lender shall have any obligation to (i) obtain any consent or approval of the Special Limited Partner with respect to any action taken or not taken by Applicable LawAgent or any Lender with regard to the Obligations or Loan Documents (or any amendment thereto or waiver or forbearance thereunder), including with respect to the Guarantor hereby unconditionally and irrevocably agrees not to exercise or non-exercise of any rights that it may now have or hereafter acquire against remedy thereunder or (ii) deliver to the Standby Purchaser Special Limited Partner any notices, reports, draw requests, appraisals, calculations, or other reports or information of any kind whatsoever relating to the Obligations or the Loan Documents, whether or not such information is required to be delivered to the Special Limited Partner pursuant to the Incentive Listing Note or is otherwise requested by the Special Limited Partner.
(c) Neither Agent nor any Lender shall be required to marshal any present or future collateral security for, or other assurances of payment of, all or any portion of the Obligations or any assets of the Loan Parties or to resort to such collateral security, other Person interested assurances of payment or assets in any particular order, and all of the transactions contemplated by rights and remedies of Agent and the Agreement Lenders in respect of such collateral security, other assurances of payment and assets shall be cumulative and in addition to all other rights and remedies, however existing or arising.
(d) The Special Limited Partner agrees that arise neither Agent, nor any Lender, nor any of their predecessors in interest or past, present and future officers, directors, employees, agents, servicers, attorneys, representatives, participants, heirs, successors and/or assigns owes any fiduciary or other duty to the Special Limited Partner to act or refrain from acting in any manner in connection with the existencefunding, paymentadministration, performancecollection, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the AgreementObligations or the exercise by Agent or any Lender of any rights and remedies contained in or granted by any the Loan Documents, and the Special Limited Partner agrees not to assert the existence of any such duty. Notwithstanding anything Without limiting the foregoing, the Special Limited Partner assumes all responsibility for keeping itself informed as to the contrary contained in this Guarantycondition (financial or otherwise), Members Mutual business, assets and/or operations (including compliance with the Loan Documents and HoldCo hereby agree that (i) the Guarantor may assertIncentive Listing Note, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms applicable) of the Agreement (includingLoan Parties, without limitationand neither Agent, nor any such claim Lender shall have any duty whatsoever to obtain, advise or defense if available that any of the Guaranteed Obligations (up deliver information or documents to the Cap) is not then required Special Limited Partner relative to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreementsuch condition, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsbusiness, assets and/or operations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Subordination Agreement (American Finance Trust, Inc)
Certain Waivers. Pledgor hereby waives and relinquishes, to the maximum extent permitted by applicable law, all rights and remedies accorded to pledgors, sureties or guarantors and agrees not to assert or take advantage of any such rights or remedies, including:
(a) To any law limiting remedies, including recovery of a deficiency against Borrowers, under an obligation secured by a mortgage or deed of trust on real property if the fullest extent permitted by Applicable Lawreal property is sold under a power of sale contained in the mortgage or deed of trust, the Guarantor hereby expressly waives any and all rights or defenses arising by reason based on any loss whether as a result of any Applicable Law that would otherwise require any election of remedies by Members Mutual such sale or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, otherwise;
(b) any right to require the marshalling of assets of the Standby Purchaser Collateral Agent to proceed against any Borrower or any other Person interested or to proceed against or exhaust any security held by Collateral Agent at any time or to pursue any other remedy in the transactions contemplated Collateral Agent's power before proceeding against Pledgor;
(c) any defense that may arise by the Agreement, and all suretyship defenses generally (other than defenses to the payment reason of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement incapacity, lack of power or a material breach by a Guaranteed Party authority, death, dissolution, merger, termination or its Affiliates disability of the last sentence of Section 8 of this Guaranty). For the avoidance of doubtPledgor, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested or the failure of Collateral Agent or any Secured Party to file or enforce a claim against the estate (in the transactions contemplated by the Agreement that arise from the existenceadministration, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty bankruptcy or any other agreement in connection herewith, including, without limitationproceeding) of Pledgor, any Borrower or any other Person;
(d) any right of subrogation, reimbursement, exoneration, contribution to enforce any remedy that Collateral Agent may have against any Borrower or indemnification any other Person and any right to participate in any claim or remedy security held by Collateral Agent until the Obligations have been paid and the covenants of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or Credit Documents have been performed in full;
(e) any right arises in equity or under contract, statute or common lawto require Collateral Agent to give any notices of any kind, including, without limitation, notices of nonpayment, nonperformance, protest, dishonor, default, delinquency or acceleration, or to make any presentments, demands or protests, except as set forth herein or expressly provided in the Credit Agreement or any of the Credit Documents;
(f) any right to take assert the bankruptcy or receive from insolvency of any Borrower or any other Person as a defense hereunder or as the Standby Purchaser basis for rescission hereof and any defense arising because of Collateral Agent's election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code;
(g) subject to Section 8.9, any right under any law purporting to reduce Pledgor's obligations hereunder if the Obligations are reduced other than as a result of payment of such Obligations;
(h) any defense based on the repudiation of the Credit Documents by any Borrower or such any other Person, directly the failure by Collateral Agent or indirectlyany Secured Party to enforce any claim against Pledgor, any Borrower or any other Person or the unenforceability in cash whole or other property or by set-off in part of any Credit Documents;
(i) all suretyship and guarantor's defenses generally;
(j) any right to insist upon, plead or in any other mannermanner whatever claim or take the benefit or advantage of, payment any appraisal, valuation, stay, extension, marshaling of assets, redemption or security on account of such claimsimilar law, remedy or rightexemption, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence whether now or at any time prior to hereafter in force, which may delay, prevent or otherwise affect the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment performance by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any Pledgor of its obligations under under, or the enforcement by Collateral Agent of, this Agreement;
(k) any requirement on the part of Collateral Agent to mitigate the damages resulting from any default;
(l) any defense based upon an election of remedies by Collateral Agent, including an election to proceed by non judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of Pledgor, the Guarantor shall similarly automatically and without further action right of Pledgor to proceed against any Borrower or another Person for reimbursement, or both;
(m) any defense based on any offset against any amounts which may be owed by any Person to Pledgor for any reason whatsoever;
(n) any defense based on any act, failure to act, delay or omission whatsoever on the part of any Person Borrower or any of their Affiliates or the failure by any Borrower or any of their Affiliates to do any act or thing or to observe or perform any covenant, condition or agreement to be relieved of its corresponding Guaranteed Obligations observed or performed by it under this Guaranty in respect of such relieved obligations.the Credit Documents;
(co) The Guarantor acknowledges any defense, setoff or counterclaim which may at any time be available to or asserted by any Borrower or any of their Affiliates against Collateral Agent or any Secured Party or any other Person under the Credit Documents;
(p) any duty on the part of Collateral Agent to disclose to Pledgor any facts Collateral Agent may now or hereafter know about any Borrower or any of their Affiliates, regardless of whether Collateral Agent has reason to believe that it will receive substantial direct and indirect benefits any such facts materially increase the risk beyond that which Pledgor intends to assume, or have reason to believe that such facts are unknown to Pledgor, or have a reasonable opportunity to communicate such facts to Pledgor; and
(q) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent or departure from the transactions contemplated by terms of the Agreement and that Credit Documents; and
(r) any defense based upon any borrowing or grant of a security interest under Section 364 of Title 11 of the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsUnited States Code.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor Each of BA and Trustee hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance by the other Party and, as applicable, the Lenders and the Noteholders of the standstill, subordination and other provisions of this Guaranty Agreement and all the notices not specifically required pursuant to the terms of this Agreement or under the UCC in connection with foreclosure on or sale of assets whatsoever, and each of BA and Trustee expressly consents to reliance by the other Party and the Lenders and Noteholders upon the subordination and other agreements as herein provided. Trustee acknowledges that none of BA or any Lender has made warranties or representations with respect to the due execution, legality, validity, completeness or enforceability of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice BA Documents or the collectibility of the incurrence BA Claim. Trustee, BA and each Lender shall be entitled to manage and supervise its financial arrangements with each Loan Party in accordance with its usual practices, modified from time to time as it deems appropriate under the circumstances, without affecting the validity or enforceability of this Agreement; and none of BA or any of the Guaranteed ObligationsLender shall have any liability to Trustee or any Noteholder for, all defenses and Trustee hereby waives any claim which such Person may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effecthave against, any right to require the marshalling of assets of the Standby Purchaser BA or any other Person interested in the transactions contemplated by the Agreement, Lender arising out of any and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser actions which BA or any other Person interested Lender, in the transactions contemplated by the Agreement that arise from the existencegood faith, payment, performance, takes or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right omits to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, actions with respect to the creation, perfection or continuation of liens or security interests in any such claim existing or defense if available that future Collateral, actions with respect to the occurrence of a default or event of default, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Guaranteed Obligations (up Collateral and actions with respect to the Capcollection of any claim for all or any part of the Trustee Claim from any account debtor, guarantor or any other person) is not then required with respect to be due and payable by the Standby Purchaser pursuant in accordance with any BA Document or any other agreement related thereto or to the terms and conditions collection of the Agreement and (iiBA Claim or the valuation, use, protection or release of the Collateral, so long as any such actions are taken in a manner consistent with the terms of this Agreement, or any election of the application of Section 1111(b)(2) of the Bankruptcy Code. BA acknowledges that none of Trustee or any Noteholder has made warranties or representations with respect to the extent due execution, legality, validity, completeness or enforceability of the Standby Purchaser is relieved Trustee Documents or the collectibility of the Trustee Claim. BA agrees that Trustee shall have no liability to BA or any Lender for, and BA hereby waives any claim which such Person may now or hereafter have against, any Trustee or any Noteholder arising out of any and all actions which Trustee, in good faith, takes or omits to take (including, without limitation, actions with respect to the creation, perfection or continuation of its obligations under liens or security interests in any existing or future Collateral, actions with respect to the occurrence of a default or event of default, actions with respect to the foreclosure upon, sale, release, or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the Trustee Claim from any account debtor, guarantor or any other person) with respect to and in accordance with the Trustee Documents, so long as any such actions are taken in a manner consistent with the terms of this Agreement, or any election of the Guarantor shall similarly automatically and without further action on application of Section 111(b)(2) of the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges Bankruptcy Code. Trustee agrees that it will receive substantial direct not take any action to contest the relative rights and indirect benefits from duties of any Lender with respect to any Collateral established in any of the transactions contemplated BA Documents. Without limiting any other provision of this Agreement, (a) by acceptance of a Note, each Noteholder shall be bound by and deemed to have made and given each of the Agreement acknowledgments and that the waivers of Trustee set forth in this Guaranty are knowingly Section 2.16 and Section 3.4 and (b) by acceptance of a note or other instrument evidencing any portion of the BA Claim, each Lender shall be bound by and deemed to have made and given each of the acknowledgments and waivers of BA set forth in contemplation of such benefitsthis Section 2.16 and Section 3.4.
Appears in 1 contract
Certain Waivers. Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) To the fullest extent permitted failure of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, or any other person interested in the transactions contemplated by Applicable Lawthe Merger Agreement; (b) any change in the corporate existence, structure or ownership of Parent, Merger Sub, or any other person interested in the Guarantor hereby expressly waives transactions contemplated by the Merger Agreement; (c) any and all rights insolvency, bankruptcy, reorganization or defenses arising other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by reason the Merger Agreement; (d) the existence of any Applicable Law that would otherwise require claim, set-off or other right which such Guarantor may have at any election time against Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise; or (e) the adequacy of remedies by Members Mutual or HoldCoany other means the Guaranteed Party may have of obtaining repayment of any of the Obligations. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Obligations and all other notices of the Guaranteed Obligationsany kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law Law now or hereafter in effect, any right to require the marshalling marshaling of assets of the Standby Purchaser or any other Person person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations (x) that are available to the Standby Purchaser Parent or Merger Sub under the Agreement or Merger Agreement, (y) in respect of a material breach by a the Guaranteed Party of this Limited Guarantee or (z) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewithwith the Merger Agreement), including, without limitation, any right of subrogationevent, reimbursementcondition or circumstance that might be construed to constitute, exoneration, contribution an equitable or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account legal discharge of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in fullGuarantor’s obligations hereunder. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guaranty Limited Guarantee are knowingly made in contemplation of such benefits. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause all of its Related Persons (as defined below) not to institute, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Equity Financing or the transactions contemplated thereby against the Guarantors or any Non-Recourse Party (as defined below), except for claims against the Guarantors under this Limited Guarantee (subject to the limitations contained herein). The Guaranteed Party hereby agrees that to the extent Parent or Merger Sub is relieved of all or any portion of its payment obligations under the Merger Agreement, each Guarantor shall be similarly relieved of its corresponding obligations under this Limited Guarantee.
Appears in 1 contract
Sources: Limited Guarantee (Sino Gas International Holdings, Inc.)
Certain Waivers. (a) To Each Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower; (b) any defense based on any claim that would otherwise such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to require any Secured Party to proceed against the Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in any Secured Party’s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies remedies; (e) any benefit of and any right to participate in any security now or hereafter held by Members Mutual any Secured Party; (f) any defense relating to the failure of any Secured Party to comply with the applicable laws in connection with the sale or HoldCo. The Guarantor waives promptness, diligence, notice other disposition of Collateral for all or any part of the Guaranteed Obligations; (g) any amendment or waiver of the term of any Guaranteed Obligation; (h) any law or regulation of any jurisdiction or any other event affecting any term of a Guaranteed Obligation; (i) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of such Guarantor under this Guaranty and (j) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty and or of the existence, creation or incurrence of new or additional Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may . This Guaranty shall not be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated affected by the Agreementgenuineness, and all suretyship defenses generally (other than defenses to the payment validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any Collateral therefor, or by any fact or circumstance relating to the Standby Purchaser Guaranteed Obligations which might otherwise constitute a defense to the obligations of any Guarantor under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the and each Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Key Energy Services Inc)
Certain Waivers. (a) The Company waives to the fullest extent permitted by law: (i) any defense based on any claim that the Company’s obligations exceed or are more burdensome than those of the Designated Borrowers or any of them; (ii) any right to require any Lender to proceed against the Designated Borrowers or any of them, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in any ▇▇▇▇▇▇’s power whatsoever and any defense based upon the doctrine of marshalling of assets or of election of remedies; (iii) any benefit of and any right to participate in any security now or hereafter held by any Lender; (iv) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Company under this Company Guaranty and (v) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash (other than inchoate indemnification liabilities arising under the Loan Documents as to which no claim has been made).
(b) The Company expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Company Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations. To the fullest extent permitted by Applicable Lawlaw, this Company Guaranty shall not be affected by the Guarantor hereby expressly waives any and all rights genuineness, validity, regularity or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and enforceability of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Loan Document or any instrument or agreement evidencing any Guaranteed Obligations, all defenses which may be available or by virtue of any valuation, stay, moratorium law fact or other similar law now or hereafter in effect, any right circumstance relating to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available or the Loan Documents which might otherwise constitute a defense to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Company under this Company Guaranty). For , and the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor Company hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Credit Agreement (Td Synnex Corp)
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require disability or other defense of any election of remedies by Members Mutual Borrower or HoldCo. The Guarantor waives promptnessany other guarantor, diligence, notice or the cessation from any cause whatsoever (including any act or omission of the acceptance of this Guaranty and Administrative Agent or any Lender Party) of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence liability of any of Borrower; (b) any defense based on any claim that the Guaranteed Obligations, all defenses which may be available by virtue Guarantor’s obligations exceed or are more burdensome than those of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any right to require the Administrative Agent or any Lender Party to proceed against any Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the Administrative Agent’s or any Lender Party’s power whatsoever and any defense based upon the doctrine of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally Lender Party; (other than defenses f) any fact or circumstance related to the payment of the Guaranteed Obligations that are available which might otherwise constitute a defense to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in Guarantor under this Guaranty is intended and (g) to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawlaw, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Each Guarantor agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) To the fullest extent permitted failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub, or any other person interested in the transactions contemplated by Applicable Lawthe Merger Agreement; (b) any change in the time, place or manner of payment of the Guarantor hereby expressly waives Obligations or any and all rights rescission, waiver, compromise, consolidation or defenses arising by reason other amendment or modification of any Applicable Law of the terms of the Merger Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any portion of the Obligations; (c) any change in the corporate existence, structure or ownership of Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (d) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement; (e) the existence of any claim, set-off or other right that would otherwise require such Guarantor may have at any election time against Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise; or (f) the adequacy of remedies by Members Mutual or HoldCoany other means the Guaranteed Party may have of obtaining repayment of any of the Obligations. The Each Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Obligations and all other notices of any kind (other than notices required to be provided to Parent and Merger Sub under the Guaranteed ObligationsMerger Agreement), all defenses which that may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, any right to require the marshalling marshaling of assets of the Standby Purchaser or any other Person person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations (x) that are available to the Standby Purchaser Parent or Merger Sub under the Agreement or Merger Agreement, (y) in respect of a material breach by a the Guaranteed Party of this Limited Guarantee or (z) in respect of fraud or willful misconduct of the Guaranteed Party or any of its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewithwith the Limited Guarantee), including, without limitation, any right of subrogationevent, reimbursement, exoneration, contribution condition or indemnification and any right circumstance that might be construed to participate in any claim constitute an equitable or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account legal discharge of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in fullGuarantor’s obligations hereunder. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Each Guarantor acknowledges that he or it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guaranty Limited Guarantee are knowingly made in contemplation of such benefits. Each Guarantor hereby covenants and agrees that it shall not, and shall cause its Related Persons (as defined below) not to, institute any proceeding or bring any other claim (whether in tort, contract or otherwise) asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms, subject to (i) the effects of insolvency, bankruptcy, reorganization or other similar proceedings and (ii) general equitable principles (whether considered in a proceeding in equity or at law). The Guaranteed Party hereby covenants and agrees that it shall not, and shall cause all of its Related Persons not to, institute any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Financing or the transactions contemplated thereby against any Guarantor or any Non-Recourse Party (as defined below), except for the Permitted Claims. The Guaranteed Party hereby agrees that, other than any discharge or release arising from the bankruptcy or insolvency of Parent or Merger Sub and other defenses expressly waived hereby, to the extent Parent or Merger Sub is relieved of all or any portion of its payment obligations under the Merger Agreement, the Guarantors shall be similarly relieved of their corresponding obligations under this Limited Guarantee.
Appears in 1 contract
Sources: Limited Guarantee (Zhou Xin)
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law(a) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require disability or other defense of any election of remedies by Members Mutual Borrower or HoldCo. The Guarantor waives promptnessany other guarantor, diligence, notice or the cessation from any cause whatsoever (including any act or omission of the acceptance of this Guaranty and Administrative Agent or any Lender Party) of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence liability of any of Borrower; (b) any defense based on any claim that the Guaranteed Obligations, all defenses which may be available by virtue Guarantor’s obligations exceed or are more burdensome than those of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any right to require the Administrative Agent or any Lender Party to proceed against any Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the Administrative Agent’s or any Lender Party’s power whatsoever and any defense based upon the doctrine of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally Lender Party; (other than defenses f) any fact or circumstance related to the payment of the Guaranteed Obligations that are available which might otherwise constitute a defense to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in Guarantor under this Guaranty is intended and (g) to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawlaw, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To Each Guarantor waives to the fullest extent permitted by Applicable Law, the law (a) any defense to payment as Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require disability or other defense of any election Borrower or the cessation from any cause whatsoever (including any act or omission of remedies by Members Mutual any Lender or HoldCo. The Guarantor waives promptness, diligence, notice the Administrative Agent) of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence liability of any of the Guaranteed Obligations, all defenses which may be available by virtue Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to require the Administrative Agent or any Lender to proceed against any Borrower, proceed against or exhaust any security for the Liabilities, or pursue any other remedy in the Administrative Agent’s or any ▇▇▇▇▇▇’s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally Lender; (other than defenses f) any fact or circumstance related to the payment of the Guaranteed Obligations that are available Liabilities which might otherwise constitute a defense to the Standby Purchaser obligations of such Guarantor under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended Agreement; and (g) to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawlaw, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Liabilities have been fully performed, and the Liabilities and any other amounts payable under this Agreement, have been indefeasibly paid in full in cash. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Liabilities, and all notices of acceptance of this guaranty or of the existence, creation or incurrence of new or additional Liabilities. The guaranty of each Guarantor hereunder shall not be affected by the genuineness, validity, regularity or enforceability of the Liabilities or any instrument or agreement evidencing any Liabilities, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Liabilities which might otherwise constitute a defense to the obligations of such Guarantor under this guaranty, and such Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Lawthat the execution, the Guarantor hereby expressly waives any and all rights delivery or defenses arising by reason performance of any Applicable Law Credit Document hereunder constitutes a Default or an Event of Default under (and as defined in) the Existing Agreement, each Lender hereunder which is a party to the Existing Agreement hereby waives such Default or Event of Default. Each Lender hereby agrees that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of Security Document under (and as defined in) the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Existing Agreement, and all suretyship defenses generally (other than defenses any financing statement or similar filing on account thereof, which remains in effect after the date hereof and is not required to be delivered pursuant to this Agreement shall be deemed not to constitute a "Lien" for purposes of this Agreement to the payment of extent that the Guaranteed Obligations that are available Company is using best efforts to the Standby Purchaser under the Agreement terminate or a material breach by a Guaranteed Party cause to be terminated such Security Document or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreementother filing.
(b) To Each Lender hereby agrees that, notwithstanding the fullest extent permitted by Applicable Lawprovisions of Section 12 of this Agreement, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement certain of the Guarantor’s obligations under Pledge Agreements relating to capital stock of Foreign Subsidiaries and certain of the Security Agreements with respect to assets of the Company and its Subsidiaries which are located outside of the United States may not be delivered prior to or in respect on the Closing Date. Each Lender hereby waives compliance with the provisions of Section 12 of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent and only to the Standby Purchaser is relieved extent necessary to permit the Closing Date to occur without the delivery of any of its obligations under such Pledge Agreements, Security Agreements, and other documentation relating thereto and to permit the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations Borrowers to borrow under this Guaranty in respect of such relieved obligations.
(c) Agreement. The Guarantor acknowledges Company hereby covenants that it will receive substantial direct shall, and indirect benefits from shall cause its Subsidiaries to, deliver to the transactions contemplated by Administrative Agent all such Pledge Agreements, Security Agreements and related documentation within 30 days following the Agreement Closing Date and that the waivers set forth in this Guaranty are knowingly made in contemplation failure to deliver any such Pledge Agreement, Security Agreement or related documentation within such 30 day period shall constitute an Event of Default hereunder; provided that, with the consent of the Agents, such benefits30 day period may be extended by not more than an additional 30 days.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable LawExcept as otherwise expressly provided herein, the Guarantor Borrowers hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives waive promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for paymentdemand, notice of non-performance, default, dishonor and protest, notice of any and all advances of the incurrence Loan made under this Agreement and the Note, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lender under or in respect of any of the Guaranteed ObligationsObligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement and the other such Loan Documents. The Borrowers hereby waive all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling marshaling of assets of the Standby Purchaser or Borrowers and any other entity or Person interested in the transactions contemplated by the Agreementprimarily or secondarily liable with respect to any of such Obligations, and all suretyship defenses generally (other than defenses to the payment generally. The Borrowers hereby assent to, and waive notice of, any extension or postponement of the Guaranteed time for the payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of such Obligations that are available to hereunder, the Standby Purchaser under acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lender at any time or times in respect of any default by the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Agreement or a material breach and the other Loan Documents, any and all other indulgences whatsoever by a Guaranteed Party or its Affiliates the Lender in respect of any of the last sentence Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of Section 8 any security for any of this Guaranty). For such Obligations or the avoidance of doubtaddition, the parties agree that nothing contained substitution or release, in this Guaranty is intended to modify whole or supersede the notice provisions in part, of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrowers or any other entity or Person interested in primarily or secondarily liable for any such Obligation. Without limiting the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement generality of the Guarantor’s obligations under or in respect of this Guaranty or foregoing, the Borrowers assent to any other agreement action or delay in connection herewithacting or failure to act on the part of the Lender, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution failure strictly or indemnification and diligently to assert any right or to participate pursue any remedy which might, but for the provisions of this Section 3.04, afford grounds for terminating, discharging or relieving the Borrowers, in whole or in part, from any claim of their obligations under this Section 3.04, it being the intention of the Borrowers that, so long as any of such Obligations hereunder remains unsatisfied, the obligations of the Borrowers under this Section 3.04 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of the Borrowers under this Section 3.04 shall not be diminished or remedy rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to the Borrowers or the Lender.
(b) The provisions of Members Mutual or HoldCo this Section 3.04 are made for the benefit of the Lender and its permitted successors and assigns, and may be enforced by them from time to time against the Standby Purchaser Borrowers as often as occasion therefor may arise and without requirement on the part of the Lender or such other Person, whether successors or not such claim, remedy assigns first to marshal any of their claims or right arises in equity to exercise any of their rights against the Borrowers or under contract, statute to exhaust any remedies available to them against the Borrowers or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in resort to any other manner, source or means of obtaining payment of any of the Obligations hereunder or security on account to elect any other remedy. The provisions of this Section 3.04 shall remain in effect until all of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsotherwise fully satisfied.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Subordinated Loan Agreement (TRC Companies Inc /De/)
Certain Waivers. Each Guarantor acknowledges and agrees that (a) To the fullest extent permitted by Applicable Law, guaranty given hereby may be enforced without the Guarantor hereby expressly waives any and all rights necessity of resorting to or defenses arising by reason otherwise exhausting remedies in respect of any Applicable Law that would otherwise require other security or collateral interests, and without the necessity at any election time of remedies by Members Mutual having to take recourse against the Borrower hereunder or HoldCo. The Guarantor waives promptnessagainst any collateral securing the Obligations or otherwise, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, (b) it will not assert any right to require the marshalling of assets of action first be taken against the Standby Purchaser Borrower or any other Person interested (including any co-guarantor) or pursuit of any other remedy or enforcement any other right, (c) it will not assert any defenses (i) with respect to any change in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment corporate existence or structure of the Guaranteed Obligations that are available Borrower, (ii) with respect to the Standby Purchaser under the Agreement any Law of any jurisdiction or a material breach by a Guaranteed Party or its Affiliates any event affecting any term of the last sentence obligations of Section 8 of each Guarantor under this Guaranty). For the avoidance of doubt, the parties agree Article XI or (iii) as a result or related to any other circumstance that nothing contained in this Guaranty is intended to modify or supersede the notice provisions might constitute a defense of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceGuarantor, payment, performance, (d) it will not assert any claims or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off rights that such Guarantor may have and (e) nothing contained herein shall prevent or in limit action being taken against the Borrower hereunder, under the other Loan Documents or the other documents and agreements relating to the Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other mannerrights or remedies available in respect thereof, payment or security on account if neither the Borrower nor the Guarantors shall timely perform their obligations, and the exercise of any such claimrights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors' obligations hereunder unless as a result thereof, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds and the commitments relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors' obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. Each Guarantor agrees that such Guarantor shall have no right of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust recourse to security for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with except through the terms exercise of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms rights of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser subrogation pursuant to Section 11.02 and through the terms and conditions exercise of the Agreement and (ii) rights of contribution pursuant to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSection 11.06.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance of this Guaranty and Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice Lender Parties) of the incurrence liability of the Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Guarantor’s liability hereunder; (d) any right to require the Lender Parties to proceed against the Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the Lender Parties’ power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender Parties; (f) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Standby Purchaser Guarantor under this Guaranty and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any other Person interested in kind or nature whatsoever with respect to the transactions contemplated by the AgreementGuaranteed Obligations, and all suretyship defenses generally (other than defenses to notices of acceptance of this Guaranty or of the payment existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Standby Purchaser under Guaranteed Obligations which might otherwise constitute a defense to the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Guarantor under this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Borrower hereby irrevocably and unconditionally waives (ai) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any promptness and all rights or defenses arising by reason diligence; (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Lender hereunder or under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Loan Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) instrument relating thereto except to the extent otherwise provided herein, (iii) all notices (other than notices specifically provided for herein or in the Standby Purchaser is relieved other Loan Documents), demands and protests, and all other formalities of every kind in connection with the enforcement of Borrower's obligations hereunder and under the other Loan Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving Borrower of any of its obligations hereunder or under the Agreementother Loan Documents, (iv) any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral for the Guarantor shall similarly automatically Loan or exhaust any right or take any action against Borrower or any other Person or against any collateral for the Loan, (v) any right or claim of right to cause a marshaling of Borrower's assets and without further action on (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or to the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Loan Documents. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM, INCLUDING AN ACTION OF INJUNCTIVE RELIEF.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Term Loan Agreement (Mendik Real Estate Limited Partnership)
Certain Waivers. (a) To Each of the fullest extent permitted by Applicable LawParties acknowledges and agrees that ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇’▇▇▇▇▇▇▇ (collectively, “Sellers’ Counsel”) has acted as counsel to the Group Companies and the Seller Parties in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby.
(b) Buyer hereby consents and agrees to, and agree to cause the Buyer Persons to consent and agree to, Sellers’ Counsel representing the Seller Parties after the Closing, including with respect to disputes in which the interests of the Seller Parties may be directly adverse to the Buyer Persons, and even though Sellers’ Counsel may have represented the Group Companies in a matter substantially related to any such dispute, or may be handling ongoing matters for the Group Companies. Buyer further consents and agrees to, and agree to cause the Buyer Persons to consent and agree to, the Guarantor hereby expressly waives communication by Sellers’ Counsel to the Seller Parties or the Group Companies in connection with any and all rights or defenses such representation of any fact known to Sellers’ Counsel arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice Sellers’ Counsel’s prior representation of the acceptance Seller Parties or the Group Companies.
(c) In connection with the foregoing, Buyer hereby irrevocably waives and agrees not to assert, and agree to cause the Buyer Persons to irrevocably waive and not to assert, any conflict of this Guaranty and interest arising from or in connection with (i) Sellers’ Counsel’s prior representation of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor Group Companies and protest, notice (ii) Sellers’ Counsel’s representation of the incurrence Seller Parties prior to and after the Closing.
(d) Buyer further agrees, on behalf of itself and the Buyer Persons, that all communications in any form or format whatsoever between or among any of Sellers’ Counsel, the Guaranteed ObligationsGroup Companies or the Seller Parties, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser hereby or any dispute arising under the Agreement or the documents related hereto (collectively, the “Deal Communications”) shall be deemed to be retained and owned by the Seller Parties, shall be controlled by the Seller Parties, shall not pass to or be claimed or used in any manner by Buyer or the Buyer Persons. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Seller Parties, shall be controlled by the Seller Parties and shall not pass to or be claimed by Buyer or the Buyer Persons.
(e) Notwithstanding the foregoing, in the event that a material breach by dispute arises between any Buyer Person, on the one hand, and a Guaranteed Party third party other than the Seller Parties or its Affiliates their respective Affiliates, on the other hand, the Buyer Persons may assert the attorney-client privilege to prevent the disclosure of the last sentence Privileged Deal Communications to such third party; provided, however, that no Buyer Person may waive such privilege without the prior written consent of Seller Representatives. In the event that any Buyer Person is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged Deal Communications, Buyer shall (i) immediately (and, in any event, within two Business Days) notify Seller Representatives in writing (including by making specific reference to this Section 8 9.8) so that Seller Representatives can seek a protective order and Buyer agrees to use all reasonable efforts to assist therewith and (ii) shall thereafter comply with the legal requirements of this Guaranty)such governmental order including, if required by such governmental order, the disclosure of information.
(f) To the extent that files or other materials maintained by Sellers’ Counsel constitute Deal Communications, only the Seller Parties shall hold such property rights to such Deal Communications and Sellers’ Counsel shall have no duty to reveal or disclose any Deal Communications by reason of any attorney-client relationship between Sellers’ Counsel, on the one hand, and a Buyer Person, on the other hand. For the avoidance of doubt, after the parties agree Closing, Sellers’ Counsel shall furnish all Deal Communications that nothing contained in this Guaranty is intended are subject to modify a governmental order or supersede the notice provisions of the Agreementsubpoena requested by a Governmental Authority.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Equity Purchase Agreement (Specialty Building Products, Inc.)
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require disability or other defense of Borrower or any election of remedies by Members Mutual other guarantor, or HoldCo. The Guarantor waives promptness, diligence, notice the cessation from any cause whatsoever (including any act or omission of the acceptance of this Guaranty and Lender) of the Guaranteed Obligations, presentment, demand for payment, notice liability of non-performance, default, dishonor and protest, notice Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of Borrower; (c) the incurrence benefit of any statute of limitations affecting the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Guarantor’s liability hereunder; (d) any right to require the Lender to proceed against Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the Lender ‘s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; (f) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Standby Purchaser Guarantor under this Guaranty and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any other Person interested in kind or nature whatsoever with respect to the transactions contemplated by the AgreementGuaranteed Obligations, and all suretyship defenses generally (other than defenses to notices of acceptance of this Guaranty or of the payment existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Standby Purchaser under Guaranteed Obligations which might otherwise constitute a defense to the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Guarantor under this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Credit Agreement (Franklin Street Properties Corp /Ma/)
Certain Waivers. (a) To No delay or omission to exercise any right, power or remedy accruing to the fullest Collateral Agent upon the occurrence and during the continuance of any Operations Co Financing Default shall impair any such right, power or remedy of the Collateral Agent, nor shall it be construed to be a waiver of any such Operations Co Financing Default or similar breach or default thereafter occurring or an acquiescence therein, nor shall any waiver of any other breach or default under this Agreement or any other Financing Document be deemed a waiver of any other breach or default theretofore or thereafter occurring. Each and every Operations Co Financing Default shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises and every power and remedy given by this Agreement may be exercised from time to time, and as often as shall be deemed expedient, by the Collateral Agent.
(b) Pledgor hereby waives and relinquishes, to the maximum extent permitted by Applicable applicable Law, the Guarantor hereby expressly waives any and all rights and remedies accorded to pledgors, sureties or defenses arising by reason guarantors and agrees not to assert or take advantage of any Applicable Law that would otherwise require any election of remedies by Members Mutual such rights or HoldCo. The Guarantor waives promptnessremedies, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, including: (i) any right to require the marshalling of assets Collateral Agent at any time to pursue any other remedy in the Collateral Agent’s power before proceeding against Pledgor; (ii) any defense that may arise by reason of the Standby Purchaser incapacity, lack of power or authority, dissolution, merger, termination or disability of Pledgor, Operations Co, Borrower or any other Person interested or the failure of the Collateral Agent to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of Pledgor, Operations Co, Borrower or any other Person; (iii) any right to require the Collateral Agent to give any notices of any kind, including notices of nonpayment, nonperformance, protest, dishonor, default, delinquency or acceleration, or to make any presentments, demands or protests, except as set forth herein or in the transactions contemplated other Financing Documents; (iv) any right under any law purporting to reduce Pledgor’s obligations hereunder if the Secured Obligations are reduced other than as a result of payment of such Secured Obligations; (v) any defense based on the repudiation of any Financing Document by Borrower, Operations Co or any other Person, the failure by the Collateral Agent to enforce any claim against Pledgor, Operations Co, Borrower or any other Person or the unenforceability in whole or in part of any Financing Document; (vi) any right to insist upon, plead or in any manner whatever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, marshaling of assets, redemption or similar law, or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance by Pledgor of its obligations under, or the enforcement by the Collateral Agent of, this Agreement; (vii) any defense based upon an election of remedies by the Collateral Agent, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of Pledgor, the right of Pledgor to proceed against Operations Co or Borrower or the failure by Operations Co or Borrower to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Financing Documents; (viii) any defense, setoff or counterclaim which may at any time be available to or asserted by Operations Co or Borrower against the Collateral Agent or any other Person under the Financing Documents; (ix) any duty on the part of the Collateral Agent to disclose to Pledgor any facts the Collateral Agent may now or hereafter know about Operations Co or Borrower, regardless of whether the Collateral Agent has reason to believe that any such facts materially increase the risk beyond that which Pledgor intends to assume, or has reason to believe that such facts are unknown to Pledgor, or has a reasonable opportunity to communicate such facts to Pledgor; and (x) any defense based on any change in the time, manner or place of any payment under, or in any other term of, the Financing Documents or any other amendment, 25902862.2 Amended and Restated Schedule 15 (Exhibit B) Pledge Agreement NG-KIH Project Implementation Agreement renewal, extension, acceleration, compromise or waiver of or any consent or departure from the terms of the Financing Documents.
(c) To the extent permitted by Law, Pledgor waives the posting of any bond otherwise required of the Collateral Agent in connection with any judicial process or proceeding to obtain possession of, replevy, attach, or levy upon any Pledged Collateral, to enforce any judgment or other security for the Secured Obligations, to enforce any judgment or other court order entered in favor of the Collateral Agent, or to enforce by specific performance, temporary restraining order, preliminary or permanent injunction, this Agreement or any other agreement or document between Pledgor and the Collateral Agent. Pledgor further agrees that upon the occurrence and during the continuation of an Operations Co Financing Default, the Collateral Agent may elect to non-judicially or judicially foreclose against any real or personal property security it holds for the Secured Obligations or any part thereof, or to exercise any other remedy against Operations Co, Borrower or any other Person, any security or any guarantor, in each case in accordance with the Financing Documents, even if the effect of that action is to deprive Pledgor of the right to collect reimbursement from Operations Co, Borrower or any other Person for any sums paid by Pledgor to the Collateral Agent for the benefit of the Secured Parties.
(d) Until the payment and satisfaction in full of the Secured Obligations, (i) Pledgor shall have no right of subrogation and Pledgor waives all rights to enforce any remedy which the Collateral Agent may now have or hereafter have against Operations Co or Borrower, and waives the benefit of, and all suretyship defenses generally rights to participate in, any security now or hereafter held by the Collateral Agent from Operations Co and Borrower and (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement ii) Pledgor waives any claim, right or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it remedy which Pledgor may now have or hereafter acquire against the Standby Purchaser Operations Co or any other Person interested in the transactions contemplated by the Agreement Borrower that arise arises hereunder and/or from the existenceperformance of Pledgor’s contribution, payment, performanceindemnification, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate participation in any claim claim, right or remedy of Members Mutual the Collateral Agent against Operations Co or HoldCo against Borrower, or any security which the Standby Purchaser Collateral Agent now has or such other Personhereafter acquires, whether or not such claim, right or remedy or right arises in equity or equity, under contract, statute by statute, under common law or common law, including, without limitation, the right otherwise. Any amount paid to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security Pledgor on account of any such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time subrogation rights prior to the payment and satisfaction in full in immediately available funds of the Guaranteed Secured Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual the Collateral Agent and HoldCo, shall immediately thereafter be segregated from other property and funds paid to the Collateral Agent for the benefit of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSecured Parties.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Project Implementation Agreement
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law law that would otherwise require any election of remedies by Members Mutual or HoldCothe Company. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to 8.9 of the Merger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law law, or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreementgenerally.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Parent, Merger Sub, or any other Person interested in the transactions contemplated by the Merger Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s 's obligations under or in respect of this Guaranty or any other agreement in connection herewiththerewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution contribution, or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo the Company against the Standby Purchaser Parent, Merger Sub, or such other Person, whether or not such claim, remedy remedy, or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser Parent, Merger Sub, or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy remedy, or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations (subject to the Cap) under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Company, shall be segregated from other property and funds of the Guarantor Guarantor, and shall forthwith be paid or delivered to Members Mutual or HoldCo the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Merger Agreement, or to be held as collateral for the Guaranteed Obligations thereafter arising. Notwithstanding anything to the contrary contained Section 3, Section 4, or elsewhere in this Guaranty, Members Mutual and HoldCo the Company hereby agree agrees that (iA) the Guarantor may assertshall have, as a defense to, or release or discharge ofand be entitled to raise, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party available to Parent and Merger Sub under the terms of the Agreement (includingMerger Agreement, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (iiB) to the extent the Standby Purchaser is Parent and Merger Sub are relieved of any of its their obligations under the Merger Agreement, the Guarantor shall be similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty solely in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Guaranty (Tellurian Inc. /De/)
Certain Waivers. The Guarantor waives:
(a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against the fullest extent permitted Borrower or any collateral for the Guaranteed Obligations;
(b) all defenses to the Guaranteed Obligations that may at any time be available to the Guarantor as a surety that would not be available if the Guarantor was the primary obligor hereunder (and agrees that payments due from the Guarantor hereunder shall be made without any reduction or deduction whatsoever, including any reduction or deduction for any setoff, counterclaim or claim of recoupment otherwise available to the Guarantor or to the Borrower);
(i) notice of acceptance of and intention to rely hereunder, (ii) notice of the making or renewal of any Loans or other extensions of credit hereunder and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 8.05 and (iv) all other notices that may be required by Applicable Law, Law or otherwise to preserve any rights against the Guarantor hereby expressly waives hereunder, including any notice of default, demand, dishonor, presentment and all rights protest;
(d) diligence; and
(e) any defense based upon, arising out of or defenses arising by reason in any way related to (i) any claim that any sale or other disposition of any Applicable Law collateral for the Guaranteed Obligations was not conducted in a commercially reasonable fashion or that would otherwise require a public sale, should the Guaranteed Parties have elected so to proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed ObligationsParties, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of including the incurrence exercise by the Guaranteed Parties of any of the Guaranteed Obligationsrights against any collateral, all defenses which may be available by virtue of any valuationimpaired, stayreduced, moratorium law released or other similar law now or hereafter in effect, otherwise extinguished any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now might otherwise have or hereafter acquire had against the Standby Purchaser Borrower or against any other Person interested in the transactions contemplated by the Agreement that arise from the existencecollateral, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 8.06 and (iiiv) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and claim that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsLoan Documents should be strictly construed against the Guaranteed Parties.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, each of the Guarantor Guarantors hereby expressly waives any and all rights or defenses arising by reason unconditionally waives: (a) notice of any Applicable Law that would of the matters referred to in Section 3 hereof; (b) all notices which may be required by statute, rule of law or otherwise require (except as expressly required to be given to the Guarantors by any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessFacility Sublease Document) to preserve any rights against the Guarantors hereunder, diligence, including notice of the acceptance of this Guaranty and by the Guaranty Beneficiary, or the creation, renewal, extension, modification or accrual of the Guaranteed ObligationsObligations or notice of any other matters relating thereto, any presentment, demand for paymentdemand, notice of non-performancedishonor, default, dishonor and protest, notice of the incurrence protest or nonpayment of any of damages or other amounts payable under any Facility Sublease Document or any Operative Document; (c) any requirement for the Guaranteed Obligationsenforcement, all defenses which may be available by virtue assertion or exercise of any valuationright, stayremedy, moratorium law power or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations privilege under or in respect of this Guaranty any Facility Sublease Document or any Operative Document, including diligence in collection or protection of or realization upon or in respect of the Obligations or any part thereof; (d) any requirement of diligence; (e) the occurrence of every other agreement in connection herewithcondition precedent to which such Guarantor or any Guaranty Beneficiary may otherwise be entitled, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate except as provided in any claim Facility Sublease Document or remedy any Operative Document; (f) any requirement to mitigate the damages resulting from a default or termination under any Facility Sublease Document or any Operative Document, except that this shall not relieve the Guaranty Beneficiary of Members Mutual or HoldCo against the Standby Purchaser or any such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, obligation; and (g) the right to take or receive from require the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid Guaranty Beneficiary to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert proceed against any Guaranteed Party under or any other Person liable on the terms Obligations, to proceed against or exhaust security held from any Guaranteed Party or any other Person, or to pursue any other remedy in the Guaranty Beneficiary’s power whatsoever, and each Guarantor waives the right to have the property of any Guaranteed Party first applied to the discharge of the Agreement (includingObligations. The Guaranty Beneficiary may, at its election, exercise any right or remedy it might have against any Guaranteed Party or any security held by the Guaranty Beneficiary, including the right to foreclose upon any such security by judicial or nonjudicial sale, without limitationaffecting or impairing in any way the liability of either Guarantor hereunder, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) except to the extent the Standby Purchaser is relieved Obligations have been paid or satisfied, and each Guarantor waives any defense arising out of the absence, impairment or loss of any right of its obligations under the Agreementreimbursement, the Guarantor shall similarly automatically and without further action on the part of contribution or any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect other right or remedy of such relieved obligations.
(c) The Guarantor against any Guaranteed Party or any such security, whether resulting from such election by the Guaranty Beneficiary, or otherwise. Each Guarantor assumes the responsibility for being and keeping informed of the financial condition of each Guaranteed Party and of all other circumstances bearing upon the risk of nonpayment or nonperformance of the Obligations and agrees that the Guaranty Beneficiary shall not have any duty to advise any Guarantor of information regarding any condition or circumstance or any change in such condition or circumstance. Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by Guaranty Beneficiary has not made any representation to the Agreement and that Guarantor concerning the waivers set forth in this Guaranty are knowingly made in contemplation financial condition of such benefitsthe Guaranteed Parties.
Appears in 1 contract
Sources: Membership Interest and Stock Purchase Agreement (Transcanada Corp)
Certain Waivers. ACAS agrees that the obligations of ACAS hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) the failure of the Company to assert any claim or demand or to enforce any right or remedy against Parent; (b) any change in the time, place or manner of payment of any of the Obligations; (c) any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations; (d) any change in the corporate existence, structure or ownership of Parent; (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or, (f) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate ACAS or sureties (other than pursuant to the Cap), in each case which may conflict with the terms of this Commitment Agreement; (g) the adequacy of any other means the Company may have of obtaining repayment of any of the Obligations; or (h) the existence of any claim or set-off which ACAS or any of its affiliates may have at any time against Parent, Merger Sub or the Company in connection with the Obligations or otherwise. To the fullest extent permitted by Applicable Lawlaw, the Guarantor ACAS hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that law which would otherwise require any election of remedies by Members Mutual or HoldCothe Company. The Guarantor ACAS waives promptness, diligence, notice of the acceptance of this Guaranty Commitment Agreement and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence any Obligations incurred and all other notices of any of kind (except for notices to be provided to Parent and its counsel in accordance with the Guaranteed ObligationsMerger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Parent or any other Person person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its subsidiaries, defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Parent under the Merger Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 Company of this GuarantyCommitment Agreement). For ACAS acknowledges that it will receive substantial direct and indirect benefits from the avoidance transactions contemplated by the Merger Agreement and that the waivers set forth in this Commitment Agreement are knowingly made in contemplation of doubtsuch benefits. The Company hereby covenants and agrees that it shall not institute, and shall cause its respective affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the parties agree Merger Agreement or the transactions contemplated thereby, against any ACAS or Parent Affiliate (as defined below) except for claims against ACAS under this Commitment Agreement, and ACAS hereby covenants and agrees that nothing contained it shall not institute, and shall cause its respective affiliates not to institute, any proceeding asserting that this Commitment Agreement is illegal, invalid or unenforceable in this Guaranty is intended accordance with its terms, subject to modify the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or supersede the notice provisions of the Agreement.
other similar laws affecting creditors' rights generally, and general equitable principles (b) To the fullest extent permitted by Applicable Law, the Guarantor whether considered in a proceeding in equity or at law). ACAS hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement Parent that arise from the existence, payment, performance, or enforcement of the GuarantorACAS’s obligations Obligations under or in respect of this Guaranty Commitment Agreement or any other agreement in connection herewiththerewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo the Company against the Standby Purchaser Parent or such other Personperson, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other PersonParent, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Commitment Agreement shall have been satisfied paid in fullfull in cash. If any amount is shall be paid to the Guarantor ACAS in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Guaranteed Obligations and all other amounts payable under this GuarantyCommitment Agreement, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Company, shall be segregated from other property and funds of the Guarantor ACAS and shall forthwith be paid or delivered to Members Mutual or HoldCo the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed ObligationsObligations and all other amounts payable under this Commitment Agreement, in accordance with the terms of the Merger Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Following an Event of Default under any Senior Credit Document:
(a) To Each Grantor agrees, to the fullest extent permitted by Applicable it may lawfully do so, that it will not at any time in any manner whatsoever claim or take the benefit or advantage of, any appraisement, valuation, stay, extension, moratorium, turnover or redemption Law, or any Law permitting it to direct the Guarantor order in which the Joint Stock Collateral shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of this Agreement or any other Security Document, hereby expressly waives all benefit or advantage of all such Laws, and covenants that it will not hinder, delay or impede under color of any such Law the execution of any power granted to the Collateral Agent in this Agreement or any other Security Document but will suffer and permit the execution of every such power as though no such Law were in force.
(b) Each Grantor, to the extent it may lawfully do so, on behalf of itself and all who may claim through or under it, including without limitation any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Joint Stock Collateral upon any sale, whether made under any power of sale granted herein or in any other Security Document or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Agreement or any other Security Document, and consents and agrees that all the Joint Stock Collateral may, at any such sale, be offered and sold as an entirety. Each Grantor hereby waives any and all rights it may at any time have to require the Collateral Agent or defenses arising by reason any other Secured Party to exercise or exhaust its rights and remedies under this Agreement, any other Security Document, any other Senior Credit Document, any other agreement or instrument, at law or in equity, as between different Persons or against any single Person, or as between different items of any Applicable Law that would otherwise require any election of remedies by Members Mutual direct or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand indirect security for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed ObligationsObligations or against any single item of such security, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim particular order, method or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct Each Grantor waives, to the extent permitted by applicable Law, presentment, demand, protest and indirect benefits from any notice of any kind (except notices expressly required hereunder or under any other Security Document) in connection with this Agreement and the transactions contemplated other Security Documents and any action taken by the Agreement and that Collateral Agent with respect to the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsJoint Stock Collateral.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives any Maker and all rights guarantors, sureties and endorsers, severally waive all applicable exemption rights, whether under any state constitution, homestead laws or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessotherwise, and also severally waive diligence, valuation and appraisement, presentment for payment, protest and demand, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for paymentprotest, notice of non-default, notice of intention to accelerate all sums under the Note or the Loan Documents, notice of acceleration of all sums under the Note or the Loan Documents, demand and dishonor and diligence in collection and nonpayment of this Note and all other notices in connection with the delivery, acceptance, performance, default, dishonor and protest, notice or enforcement of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of this Note (except notice of default and any other notice as specifically provided for in this Note, the Guaranteed Obligations that are available to Deed of Trust or the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this GuarantyLoan Documents). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby unconditionally and irrevocably agrees not Maker further waives all benefit that might accrue to exercise Maker by virtue of any rights that it may now have present or hereafter acquire against the Standby Purchaser future laws exempting any Property, or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceproperty, payment, performancereal or personal, or enforcement the proceeds arising from any sale of the Guarantor’s obligations any such property, from attachment, levy, or sale under execution, or in respect providing for any stay of execution to be issued on any judgment recovered on this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off Note or in any other manneraction to foreclose the Deed of Trust, payment injunction against sale pursuant to power of sale, exemption from civil process or security on account extension of time for payment. Mak▇▇ ▇▇rees that any real estate that may be levied upon pursuant to a judgment obtained by virtue of this Note, or any writ of execution issued thereon, may be sold upon any such claimwrit in whole or in part in any order desired by Pay▇▇. ▇n addition, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation extent permitted by applicable law, Maker hereby agrees that Payee may bring separate actions on this Note and on any of the immediately preceding sentence at Loan Documents and Maker waives any time prior to rights it may have under the payment in full in immediately available funds law of the Guaranteed Obligations under this Guaranty, state in which any Property is located to object to or raise a defense in any such amount shall be received and held in trust for the benefit action regarding such splitting of Members Mutual and HoldCo, shall be segregated from other property and funds causes of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreementaction. Notwithstanding anything to the contrary contained in this GuarantyNote or the other Loan Documents, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms Sections ____ through ____ of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is [APPLICABLE STATE PROPERTY CODE] are not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsbeing waived.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Deed of Trust Note (Equity Inns Inc)
Certain Waivers. Each Credit Party hereby irrevocably and unconditionally waives (ai) To the fullest extent permitted by Applicable Lawpromptness and diligence, the Guarantor hereby expressly waives any and all rights or defenses arising by reason (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Lender hereunder or under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Credit Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim instrument relating hereto or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) thereto except to the extent otherwise provided herein, (iii) all other notices, demands and protests, and all other formalities of every kind, in connection with the Standby Purchaser is relieved enforcement of a Credit Party’s obligations hereunder and under the other Credit Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving any Credit Party of any of its obligations hereunder or under the Agreementother Credit Documents, (iv) any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral for the Obligations or exhaust any right or take any action against Borrower, any other Credit Party, Guarantor shall similarly automatically or any other Person or against any collateral for the Obligations, (v) any right or claim of right to cause a marshalling of Borrower’s assets and without further action on the part (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or pursuant to any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Credit Document. EACH CREDIT PARTY FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE OTHER CREDIT DOCUMENTS OR OTHERWISE IN RESPECT OF THE LOANS OR THE CREDIT FACILITY, ANY AND EVERY RIGHT SUCH CREDIT PARTY MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND/OR (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable applicable Law, the Guarantor Guarantors hereby expressly waives waive any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCothe Company. The Guarantor waives Guarantors waive promptness, diligence, notice of the acceptance of this Limited Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed ObligationsObligations and all other notices of any kind (other than notices expressly required to be provided to Parent or Merger Sub pursuant to the Merger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Parent or Merger Sub or any other Person person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreementgenerally.
(b) To the fullest extent permitted by Applicable applicable Law, the Guarantor Guarantors hereby unconditionally and irrevocably agrees agree not to exercise any rights that it either of them may now have or hereafter acquire against the Standby Purchaser Parent, Merger Sub or any other Person person interested in the transactions contemplated by the Merger Agreement that arise from the existence, payment, performance, performance or enforcement of the Guarantor’s Guarantors’ obligations under or in respect of this Limited Guaranty or any other agreement in connection herewith, including, including without limitation, limitation any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual the Company against Parent, Merger Sub or HoldCo against the Standby Purchaser or such any other Personperson, whether or not such claim, remedy or right arises in equity or under contract, statute or common lawLaw, including, including without limitation, limitation the right to take or receive from the Standby Purchaser Parent, Merger Sub or such any other Personperson, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is shall be paid to the either Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Limited Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Company, shall be segregated from other property and funds of the such Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Merger Agreement, or to be held as collateral for the Guaranteed Obligations thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guaranty, Members Mutual and HoldCo the Company hereby agree agrees that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is Parent and Merger Sub are relieved of any of its their respective obligations under the Merger Agreement, the Guarantor Guarantors shall be similarly automatically and without further action on the part of any Person be relieved of its their corresponding Guaranteed Obligations under this Limited Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges Guarantors acknowledge that it they will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Limited Guaranty (Marubeni Corp /Fi)
Certain Waivers. (a) To Subject to the fullest extent permitted by Applicable Lawother provisions contained in this paragraph, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, indemnity, exoneration, contribution or indemnification any other claim which it may now or hereafter have against the Borrower, any Guarantor or any other person directly or contingently liable for the Obligations or the Guarantied Obligations, or against or with respect to the Borrower’s property, arising from the existence or performance of this Guaranty. Each of the waivers set forth in the preceding sentence shall cease to be effective only at the end of the period which begins 1 day after the date on which the Borrower has repaid in full to each of the Guaranteed Parties all of the Guarantied Obligations and ends one year later and then, only if during such period, the Borrower or any right successor thereto has not become subject to participate any Insolvency Proceeding. If the provisions set forth in the preceding sentences of this paragraph: (a) would, in the Guaranteed Parties’ determination, adversely affect any defense available to the Guarantor or the Guaranteed Parties to any claim that any payment made by the Borrower or any other Guarantor to the Guaranteed Parties with respect to the Obligations or Guarantied Obligations may be a voidable preference or (b) shall be determined by a court of competent jurisdiction (i) to be unenforceable or (ii) to void this Guaranty in its entirety, or the provisions of the preceding sentences in this paragraph, under any fraudulent transfer or similar law, then in any claim or remedy of Members Mutual or HoldCo against such event, and with respect to clause (a) hereof only after written notice by the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitationAgent to the Guarantor, the right to take or receive from waivers set forth in the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account preceding sentences of such claim, remedy or right, unless and until the Guaranteed Obligations this paragraph shall have no force and effect and the Guarantor agrees that it will not exercise any rights which it might acquire by way of subrogation or otherwise until all of the Guarantied Obligations have been satisfied paid in full. If any amount is shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guarantyparagraph, such amount shall be received and held in trust for the Guaranteed Parties’ benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) Agent for the benefit of the Guaranteed Parties to be credited and applied to the Guaranteed Obligations, Obligations whether matured or unmatured in accordance with the terms Credit Documents. The Borrower and any successor thereto and any trustee in bankruptcy of the Agreement. Notwithstanding anything Borrower or such successor shall be a third-party beneficiary of and have the right to enforce, and have the contrary benefit of, the waivers contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsparagraph.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To Each Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual disability or HoldCo. The Guarantor waives promptness, diligence, notice other defense of the acceptance of this Guaranty and Borrower or any other Guarantor, or the cessation from any cause whatsoever (including any act or omission of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice Secured Parties) of the incurrence liability of the Borrower; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, limitations affecting such Guarantor’s liability hereunder; (d) any right to require the Secured Parties to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the Secured Parties’ power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any right to participate in any security now or hereafter held by the Secured Parties; (f) any fact or circumstance related to the Obligations which might otherwise constitute a defense to the obligations of such Guarantor under this Guaranty and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Obligations have been fully performed and paid in full in cash. Each of the Standby Purchaser Guarantors expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any other Person interested in kind or nature whatsoever with respect to the transactions contemplated by the AgreementObligations, and all suretyship defenses generally (other than defenses notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the payment Obligations which might otherwise constitute a defense to the obligations of the Guaranteed Obligations that are available to the Standby Purchaser Guarantors under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the and each Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly and unconditionally waives any and all rights or defenses arising by reason of any Applicable Law that which would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives the Company, promptness, diligence, notice of the acceptance of this Guaranty Limited Guarantee and of the Guaranteed ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence Obligation incurred and all other notices of any of kind (other than notices to Parent or Merger Sub pursuant to the Guaranteed ObligationsMerger Agreement or this Limited Guarantee), all defenses which may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Parent or Merger Sub or any other Person interested in the transactions contemplated by the Agreement, Merger Agreement and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its Subsidiaries or Affiliates, defenses to the payment of the Guaranteed Obligations Obligation under the Merger Agreement that are available to the Standby Purchaser under the Agreement Parent or a material Merger Sub or breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 Company of this GuarantyLimited Guarantee). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly and unconditionally and irrevocably agrees not to exercise waives any rights that it may now have or hereafter acquire against the Standby Purchaser Parent or any other Person interested in the transactions contemplated by the Agreement Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s its obligations under or in respect of this Guaranty Limited Guarantee or any other agreement in connection herewiththerewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual the Company against Parent or HoldCo against the Standby Purchaser or such other PersonMerger Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser Parent or such other PersonMerger Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations Obligation shall have been satisfied paid in full. If any amount is shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this GuarantyObligation, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Company, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed ObligationsObligation, in accordance with the terms of the Merger Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense towhether matured or unmatured, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by held as collateral for the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsObligation.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guaranty Limited Guarantee are knowingly made in contemplation of such benefits.
(d) Notwithstanding anything otherwise contained herein, for the avoidance of doubt, the Guarantor retains any and all defenses that may be available to it that the Obligation is not due pursuant to the Merger Agreement and/or has already been satisfied or performed.
Appears in 1 contract
Certain Waivers. (a) To Each of Purchaser and Seller, for itself and on behalf of its Affiliates and their respective officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors and permitted assigns, intends to and acknowledges and agrees that, from and after the Closing, to the fullest extent permitted by Applicable under applicable Law, including by contractually shortening the Guarantor hereby expressly waives applicable statute of limitations, any and all rights or defenses arising by reason rights, claims and causes of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessaction it may have against such other Party, diligenceits respective Affiliates and its and their respective officers, notice directors, employees, partners, members, managers, agents, attorneys, representatives, successors and permitted assigns relating to the operation of the acceptance of this Guaranty and of Company Group or the Guaranteed ObligationsBusiness prior to the Closing, presentmentwhether arising under, demand for paymentor based upon, notice of non-performanceany Law (including any right, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium whether arising at law or other similar law now or hereafter in effectequity, any right to require the marshalling of assets of the Standby Purchaser seek indemnification, contribution, cost recovery, damages or any other recourse or remedy, including as may arise under common law or CERCLA or any other Environmental Law) are hereby irrevocably waived; provided that nothing contained herein shall release, waive or otherwise affect the rights or obligations of any Person interested in (i) under any Other Transaction Documents or the transactions contemplated by the Confidentiality Agreement, (ii) with respect to any provision herein that survives the Closing (including any rights to indemnification under this Article XI) or (iii) for claims of or causes of action arising from Fraud. Purchaser and all suretyship defenses generally (other than defenses to Seller acknowledge and agree that the payment agreements contained in this Section 11.07 and the representations and warranties contained in Section 4.09 are an integral part of the Guaranteed Obligations that are available to Transactions and the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates inducement of the last sentence of Section 8 of this Guaranty)Parties to consummate the Transactions. For Notwithstanding the avoidance of doubtforegoing, the parties agree that nothing contained in this Guaranty is intended Section 11.07 shall in any way impair (A) the rights and obligations of Purchaser and Seller to modify or supersede resolve disputes with respect to the notice provisions Statement and the calculation of the Agreement.
Final Purchase Price pursuant to Section 1.04 or (b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (iB) the Guarantor may assert, as a defense to, or release or discharge of, any payment by rights and obligations of Purchaser and the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party R&W Insurer under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsR&W Insurance Policy.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted It is acknowledged by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice each of the acceptance of this Guaranty Parties hereto that Seller, Seller Parent and of the Guaranteed ObligationsCompany have retained ▇▇▇▇▇▇, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP (“Orrick”) to act as their counsel in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in connection with the transactions contemplated by this Agreement. The Parties acknowledge and agree that Orrick shall be permitted, without need for any additional conflict waiver or other consent from Buyer or the AgreementCompany, and all suretyship defenses generally (other than defenses to represent Seller Parent and/or Seller in any post-Closing matter solely to the payment of the Guaranteed Obligations that are available extent related to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by this Agreement and will not seek to disqualify Orrick. The Parties further acknowledge and agree that in connection with (a) any actual or potential dispute following the Agreement that arise from Closing between Buyer or its related Indemnified Party, on the existenceone hand, paymentand Seller Parent or its related Indemnifying Party or representative of Seller Parent or such related Indemnifying Party, performanceon the other hand, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or (b) any other agreement actual or potential dispute to which buyer or its related Indemnified Party is a party and in connection herewithwhich Seller Parent or its related Indemnifying Party or representative of Seller Parent or such related Indemnifying Party is in any way involved, includingin each case solely to the extent related to the transactions contemplated hereby, without limitation, any right Seller Parent or its related Indemnifying Party and the representative of subrogation, reimbursement, exoneration, contribution Seller Parent or indemnification and any such related Indemnifying Party shall have the sole right to participate in invoke or waive or cause Buyer to invoke or waive any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, attorney-client privilege or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) rights and obligations of confidentiality, in each case, attaching to any pre-Closing communications between the Company and its attorneys, including Orrick, solely to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from related to the transactions contemplated by hereby, notwithstanding the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation transfer of any record of such benefitscommunications to Buyer or related Indemnified Party.
Appears in 1 contract
Certain Waivers. Each Credit Party hereby irrevocably and unconditionally waives (ai) To the fullest extent permitted by Applicable Lawpromptness and diligence, the Guarantor hereby expressly waives any and all rights or defenses arising by reason (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Lender hereunder or under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Credit Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim instrument relating hereto or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) thereto except to the extent otherwise provided herein, (iii) all other notices, demands and protests, and all other formalities of every kind, in connection with the Standby Purchaser is relieved enforcement of a Credit Party's obligations hereunder and under the other Credit Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving any Credit Party of any of its obligations hereunder or under the Agreementother Credit Documents, (iv) any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral for the Obligations or exhaust any right or take any action against Borrower, any other Credit Party, Guarantor shall similarly automatically or any other Person or against any collateral for the Obligations, (v) any right or claim of right to cause a marshalling of Borrower's assets and without further action on the part (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or pursuant to any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Credit Document. EACH CREDIT PARTY FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE OTHER CREDIT DOCUMENTS OR OTHERWISE IN RESPECT OF THE LOANS OR THE CREDIT FACILITY, ANY AND EVERY RIGHT SUCH CREDIT PARTY MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND/OR (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense of any Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of any Borrower, other than the defense that would otherwise the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash; (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any right to require any election of remedies by Members Mutual Guaranteed Party to proceed against any Borrower, proceed against or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of exhaust any security for the Guaranteed Obligations, presentment, demand for payment, notice or pursue any other remedy in any Guaranteed Party’s power whatsoever and any defense based upon the doctrine of non-performance, default, dishonor marshalling of assets or of election of remedies; (e) any benefit of and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of right to participate in any valuation, stay, moratorium law or other similar law security now or hereafter in effect, held by any right Guaranteed Party; (f) any fact or circumstance related to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available which might otherwise constitute a defense to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Guarantor under this Guaranty). For , other than the avoidance of doubt, defense that the parties agree that nothing contained Guaranteed Obligations have been fully performed and indefeasibly paid in this Guaranty is intended full in cash and (g) to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawlaw, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Credit Agreement (Equinix Inc)
Certain Waivers. Each Guarantor acknowledges and agrees that (a) To the fullest extent permitted by Applicable Law, guaranty given hereby may be enforced without the Guarantor hereby expressly waives any and all rights necessity of resorting to or defenses arising by reason otherwise exhausting remedies in respect of any Applicable Law that would otherwise require other security or collateral interests, and without the necessity at any election time of remedies by Members Mutual having to take recourse against the Borrower hereunder or HoldCo. The Guarantor waives promptnessagainst any collateral securing the Obligations or otherwise, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, (b) it will not assert any right to require the marshalling of assets of action first be taken against the Standby Purchaser Borrower or any other Person interested (including any co-guarantor) or pursuit of any other remedy or enforcement any other right, (c) it will not assert any defenses (i) with respect to any change in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment corporate existence or structure of the Guaranteed Obligations that are available Borrower, (ii) with respect to the Standby Purchaser under the Agreement any Law of any jurisdiction or a material breach by a Guaranteed Party or its Affiliates any event affecting any term of the last sentence obligations of Section 8 of each Guarantor under this Guaranty). For the avoidance of doubt, the parties agree Article XI or (iii) as a result or related to any other circumstance that nothing contained in this Guaranty is intended to modify or supersede the notice provisions might constitute a defense of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceGuarantor, payment, performance, (d) it will not assert any claims or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off rights that such Guarantor may have and (e) nothing contained herein shall prevent or in limit action being taken against the Borrower hereunder, under the other Loan Documents or the other documents and agreements relating to the Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other mannerrights or remedies available in respect thereof, payment or security on account if neither the Borrower nor the Guarantors shall timely perform their obligations, and the exercise of any such claimrights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors’ obligations hereunder unless as a result thereof, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds and the commitments relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. Each Guarantor agrees that such Guarantor shall have no right of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust recourse to security for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with except through the terms exercise of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms rights of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser subrogation pursuant to Section 11.02 and through the terms and conditions exercise of the Agreement and (ii) rights of contribution pursuant to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSection 11.06.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor Each Grantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessit may have to a judicial hearing, diligenceif any, notice in advance of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence enforcement of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any Secured Party’s rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewithhereunder, including, without limitation, its rights following any right Event of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right Default to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation immediate possession of the immediately preceding sentence at any time prior Collateral and exercise its rights with respect thereto; excluding, however, rights to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party judicial hearing existing under the terms of the Agreement applicable Gaming Laws.
(b) Secured Party shall not be required to marshal any present or future security for (including, without limitation, this Assignment and the Collateral subject to a security interest hereunder), or guaranties of, the Secured Obligations or any of them, or to resort to such claim security or defense if available guaranties in any particular order. Each Grantor hereby agrees that it will not invoke any Law relating to the marshalling of collateral which might cause delay in or impede the enforcement of Secured Party’s rights under this Assignment or any other instrument evidencing any of the Guaranteed Secured Obligations (up to the Cap) is not then required to be due and payable or by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of which any of its obligations under such Secured Obligations is secured or guaranteed, and each Grantor hereby irrevocably waives the Agreement, the Guarantor shall similarly automatically and without further action on the part benefits of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of all such relieved obligationsLaws.
(c) The Guarantor acknowledges that it will receive substantial direct Except for notices specifically provided for herein, each Grantor hereby expressly waives demand, notice, protest, notice of acceptance of this Assignment, notice of loans made, credit extended, collateral received or delivered or other action taken in reliance hereon and indirect benefits from all other demands and notices of any description. With respect both to Secured Obligations and any collateral therefor, each Grantor assents to any extension or postponement of the transactions contemplated time of payment or any other indulgence, to any substitution, of any Person primarily or secondarily liable, to the acceptance of partial payment thereon and the settlement, compromising or adjusting of any thereof, all in such manner and at such time or times as Secured Party may deem advisable. Secured Party shall have no duty as to the protection of the Collateral or any income thereon, nor as to the preservation of rights against prior parties, nor as to the preservation of any rights pertaining thereto except as otherwise required by Law. Secured Party may exercise its rights with respect to the Collateral without resorting or regard to other collateral or sources of reimbursement for liability. Secured Party shall not be deemed to have waived any of its rights upon or under the Second Amended and Restated Credit Agreement or the Collateral unless such waiver be in writing and signed by the Secured Party. No delay or omission on the part of the Secured Party in exercising any right shall operate as a waiver of any right on any future occasion. All rights and remedies of the Secured Party under the Second Amended and Restated Credit Agreement or on the Collateral, whether evidenced hereby or by any other instrument or papers, shall be cumulative and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsmay be exercised singularly or concurrently.
Appears in 1 contract
Certain Waivers. (a) To Each Lender hereby acknowledges that certain of the fullest Foreign Pledge Agreements and related documentation may not be executed and delivered prior to or on the Closing Date. Each Lender hereby waives compliance with the provision of Section 9 of this Agreement to the extent permitted by Applicable Law, and only to the Guarantor hereby expressly waives any extent necessary to permit the Borrowers to borrow under the this Agreement without the delivery of such Pledge Agreements and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCoother documentation. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the AgreementCompany hereby covenants that it shall, and all suretyship defenses generally (other than defenses shall cause its Subsidiaries to, deliver to the payment of Administrative Agent all such Foreign Pledge Agreements and related documentation within 30 days following the Guaranteed Obligations Closing Date and that are available the failure to the Standby Purchaser under the deliver any such Foreign Pledge Agreement or a material breach related documentation within such 30-day period shall constitute an Event of Default hereunder; PROVIDED that the Administrative Agent may (in its sole discretion) elect to extent such 30-day period by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreementnot more than an additional 30 days.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor Borrowers shall similarly automatically and without further action on the part of any Person not be relieved of its corresponding Guaranteed Obligations entitled to borrow European Revolving Loans under this Guaranty in respect of Agreement until March 11, 1998; PROVIDED that such relieved obligationsrestriction shall not affect the commitment fees payable pursuant to this Agreement if such European Revolving Loans were available (but undrawn) during such period.
(c) The Guarantor acknowledges that it will receive substantial direct Company hereby agrees, and indirect benefits from the transactions contemplated by the each Lender which is both a party to this Agreement and the Existing Agreement hereby agrees (in its capacity as a "Lender" under the Existing Agreement), that:
(i) the Existing Agreement hereby is superseded by this Agreement, except that (A) the waivers set forth Company and its Subsidiaries shall remain obligated to pay any amounts owing thereunder, (B) any provision of the Existing Agreement which is expressly stated therein to survive the termination thereof shall be deemed to be incorporated in this Guaranty Agreement for the benefit of the Lenders under (and as defined in) the Existing Agreement and (C) the Revolving Credit Commitments of each Lender under (and as defined in) the Existing Agreement (and any related provisions of the Existing Agreement) shall remain in effect through March 11, 1998 to the extent necessary to permit the Borrowers under the Existing Agreement to borrow European Revolving Loans through such date in accordance with the terms of the Existing Agreement (with the Company acknowledging and agreeing, on its own behalf and on behalf of each of its Subsidiaries, that any credit support and collateral security granted pursuant to the Existing Agreement shall continue to secure and support such European Revolving Loans until they are knowingly made in contemplation superseded by European Revolving Loans under this Agreement or repaid); and
(ii) on March 11, 1998, the Revolving Credit Obligations under (and as defined in) the Existing Agreement shall be due and payable (it being understood that such Revolving Credit Obligations may be paid through borrowings or other extensions of such benefitscredit under this Agreement).
Appears in 1 contract
Sources: Credit Agreement (Hexcel Corp /De/)
Certain Waivers. Each Guarantor acknowledges and agrees that (a) To the fullest extent permitted by Applicable Law, guaranty given hereby may be enforced without the Guarantor hereby expressly waives any and all rights necessity of resorting to or defenses arising by reason otherwise exhausting remedies in respect of any Applicable Law that would otherwise require other security or collateral interests, and without the necessity at any election time of remedies by Members Mutual having to take recourse against the Borrowers hereunder or HoldCo. The Guarantor waives promptnessagainst any collateral securing the Obligations or otherwise, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, (b) it will not assert any right to require the marshalling of assets of action first be taken against the Standby Purchaser Borrowers or any other Person interested (including any co-guarantor) or pursuit of any other remedy or enforcement any other right, (c) it will not assert any defenses (i) with respect to any change in the transactions contemplated by the Agreementcorporate existence or structure of any Borrower, and all suretyship defenses generally (other than defenses ii) with respect to the payment any Law of any jurisdiction or any event affecting any term of the Guaranteed Obligations obligations of each Guarantor under this Article XI or (iii) as a result or related to any other circumstance that are available to the Standby Purchaser under the Agreement or might constitute a material breach by a Guaranteed Party or its Affiliates defense of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceGuarantor, payment, performance, (d) it will not assert any claims or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off rights that such Guarantor may have and (e) nothing contained herein shall prevent or in limit action being taken against the Borrowers hereunder, under the other Loan Documents or the other documents and agreements relating to the Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other mannerrights or remedies available in respect thereof, payment or security on account if neither the Borrowers nor the Guarantors shall timely perform their obligations, and the exercise of any such claimrights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors' obligations hereunder unless as a result thereof, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds and the commitments relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors' obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. Each Guarantor agrees that such Guarantor shall have no right of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust recourse to security for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with except through the terms exercise of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms rights of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser subrogation pursuant to Section 11.02 and through the terms and conditions exercise of the Agreement and (ii) rights of contribution pursuant to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSection 11.06.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) The Company waives to the fullest extent permitted by law: (i) any defense based on any claim that the Company’s obligations exceed or are more burdensome than those of any Designated Borrower; (ii) any right to require any Lender to proceed against any Designated Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in any Lender’s power whatsoever and any defense based upon the doctrine of marshalling of assets or of election of remedies; (iii) any benefit of and any right to participate in any security now or hereafter held by any Lender; (iv) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Company under this Company Guaranty and (v) to the fullest extent permitted by law, any and all 123
(b) The Company expressly waives all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Company Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations. To the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Company Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may shall not be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated affected by the Agreementgenuineness, and all suretyship defenses generally (other than defenses to the payment validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by any fact or circumstance relating to the Standby Purchaser under Guaranteed Obligations which might otherwise constitute a defense to the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Company under this Company Guaranty). For , and the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor Company hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. The Guarantor waives:
(a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against Cogenex or any collateral for the fullest extent permitted Guaranteed Obligations;
(b) all defenses to, and all setoffs, counterclaims and claims of recoupment against, the Guaranteed Obligations that may at any time be available to Cogenex or the Guarantor;
(i) notice of acceptance of and intention to rely hereunder, (ii) notice of the making or renewal of any Loans of Cogenex or other extensions of credit to Cogenex hereunder and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 9.06 and (iv) all other notices that may be required by Applicable Law, Law or otherwise to preserve any rights against the Guarantor hereby expressly waives hereunder, including any notice of default, demand, dishonor, presentment and all rights protest;
(d) diligence;
(e) any defense based upon, arising out of or defenses arising by reason in any way related to (i) any claim that any sale or other disposition of any Applicable Law collateral for the Guaranteed Obligations was not conducted in a commercially reasonable fashion or that would otherwise require a public sale, should the Guaranteed Parties have elected so to proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed ObligationsParties, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of including the incurrence exercise by the Guaranteed Parties of any of the Guaranteed Obligationsrights against any collateral, all defenses which may be available by virtue of any valuationimpaired, stayreduced, moratorium law released or other similar law now or hereafter in effect, otherwise extinguished any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise might otherwise have had against Cogenex or against any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existencecollateral, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 9.07 and (iiiv) to any claim that the extent Loan Documents should be strictly construed against the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.Parties; and
(cf) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsALL OTHER DEFENSES UNDER ANY APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO THE GUARANTOR AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS LIABILITIES AND OBLIGATIONS HEREUNDER.
Appears in 1 contract
Certain Waivers. Each Guarantor acknowledges and agrees that (a) To the fullest extent permitted by Applicable Law, guaranty given hereby may be enforced without the Guarantor hereby expressly waives any and all rights necessity of resorting to or defenses arising by reason otherwise exhausting remedies in respect of any Applicable Law that would otherwise require other security or collateral interests, and without the necessity at any election time of remedies by Members Mutual having to take recourse against the Borrowers hereunder or HoldCo. The Guarantor waives promptnessagainst any collateral securing the Obligations or otherwise, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, (b) it will not assert any right to require the marshalling of assets of action first be taken against the Standby Purchaser Borrowers or any other Person interested (including any co-guarantor) or pursuit of any other remedy or enforcement any other right, (c) it will not assert any defenses (i) with respect to any change in the transactions contemplated by the Agreementcorporate existence or structure of any Borrower, and all suretyship defenses generally (other than defenses ii) with respect to the payment any Law of any jurisdiction or any 187 [Published CUSIP Number: ____] event affecting any term of the Guaranteed Obligations obligations of each Guarantor under this Article X or (iii) as a result or related to any other circumstance that are available to the Standby Purchaser under the Agreement or might constitute a material breach by a Guaranteed Party or its Affiliates defense of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceGuarantor, payment, performance, (d) it will not assert any claims or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off rights that such Guarantor may have and (e) nothing contained herein shall prevent or in limit action being taken against the Borrowers hereunder, under the other Loan Documents or the other documents and agreements relating to the Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other mannerrights or remedies available in respect thereof, payment or security on account if neither the Borrowers nor the Guarantors shall timely perform their obligations, and the exercise of any such claimrights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors' obligations hereunder unless as a result thereof, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds and the commitments relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors' obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. Each Guarantor agrees that such Guarantor shall have no right of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust recourse to security for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with except through the terms exercise of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms rights of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser subrogation pursuant to Section 10.02 and through the terms and conditions exercise of the Agreement and (ii) rights of contribution pursuant to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSection 10.06.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Credit Agreement (Invacare Corp)
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor Each Lender hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law acknowledges that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice certain of the acceptance of this Guaranty Foreign Pledge Agreements and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement related documentation (including, without limitation, any such claim or defense if available that any amendments and/or releases of the Guaranteed Obligations (up Foreign Pledge Agreements under, and as defined in, the Existing Agreement) may not be executed and delivered prior to or on the Cap) is not then required to be due and payable by Closing Date. Each Lender hereby waives compliance with the Standby Purchaser pursuant to the terms and conditions provision of the Section 12 of this Agreement and (ii) to the extent and only to the Standby Purchaser is relieved extent necessary to permit the Borrowers to borrow under this Agreement without the delivery of such Foreign Pledge Agreements and other documentation. The Company hereby covenants that it shall, and shall cause its Subsidiaries to, deliver to the Administrative Agent all such Foreign Pledge Agreements and related documentation within 45 days following the Closing Date and that the failure to deliver any such Foreign Pledge Agreement or related documentation within such 45-day period shall constitute an Event of Default hereunder; PROVIDED that the Administrative Agent may (in its sole discretion) elect to extend such 45-day period by not more than an additional 45 days.
(b) This Agreement shall be effective (other than with respect to Composites-France) notwithstanding the failure of Composites-France to execute this Agreement on the Closing Date. Upon receipt by the Administrative Agent from Composites-France of its obligations under the executed counterpart to this Agreement, an opinion of foreign counsel to Composites-France, documents evidencing corporate authorization of Composites-France and other related documents required under Section 12 of this Agreement on or prior to December 31, 1998, this Agreement shall be effective with respect to Composites-France and Composites-France shall have all the Guarantor rights and obligations of, and shall similarly automatically become, a Foreign Borrower and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of a Credit Party hereunder at such relieved obligationstime.
(c) The Guarantor acknowledges that it will receive substantial direct Company hereby agrees, and indirect benefits from the transactions contemplated by the each Lender which is both a party to this Agreement and the Existing Agreement hereby agrees (in its capacity as a "Lender" under the Existing Agreement), that the waivers set forth Existing Agreement hereby is superseded by this Agreement, except that (i) the Company and its Subsidiaries shall remain obligated to pay any amounts owing thereunder and (ii) any provision of the Existing Agreement which is expressly stated therein to survive the termination thereof shall be deemed to be incorporated in this Guaranty are knowingly made in contemplation Agreement for the benefit of such benefitsthe Lenders under (and as defined in) the Existing Agreement.
Appears in 1 contract
Sources: Credit Agreement (Hexcel Corp /De/)
Certain Waivers. Mobile Energy waives (a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against the fullest extent permitted by Applicable LawCompany, any other guarantor or any collateral for the Obligations or any guaranty thereof, (b) all defenses to, and all setoffs, counterclaims and claims of recoupment against, the Guarantor hereby expressly waives Obligations that may at any time be available to the Company or any other guarantor, (c)
(i) notice of acceptance of and all rights or defenses arising by reason intention to rely on this Guaranty, (ii) notice of any Applicable Loans hereunder and of the incurrence or renewal of any other Obligations, (iii) notice of any of the matters referred to in Section 8.7 and (iv) all other notices that may be required by Law or otherwise to preserve any rights against Mobile Energy under this Guaranty, including any notice of default, demand, dishonor, presentment and protest, (d) diligence, (e) any defense based upon, arising out of or in any way related to (i) any claim that would otherwise require any sale or other disposition of any collateral for the Obligations or any guaranty thereof was not conducted in a commercially reasonable fashion or that a public sale, should the Agent, any Lender or the Collateral Agent (as the case may be), have elected to so proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual the Agent, any Lender or HoldCo. The Guarantor waives promptnessthe Collateral Agent (as the case may be), diligenceincluding the exercise by the Agent, notice of any Lender or the acceptance of this Guaranty and of Collateral Agent (as the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence case may be) of any of the Guaranteed Obligationsrights against any collateral, all defenses which may be available by virtue of any valuationimpaired, stayreduced, moratorium law released or other similar law now or hereafter in effect, otherwise extinguished any right to require that Mobile Energy might otherwise have had against the marshalling of assets of the Standby Purchaser Company or any other Person interested in the transactions contemplated by the Agreementguarantor or against any collateral, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 8.7 and (iiiv) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under claim that this Guaranty in respect of such relieved obligationsshould be strictly construed against the Agent or any Lender and (f) ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO MOBILE ENERGY AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS HEREUNDER.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Revolving Credit Agreement (Mobile Energy Services Co LLC)
Certain Waivers. Each Guarantor acknowledges and agrees that (a) To the fullest extent permitted by Applicable Law, guaranty given hereby may be enforced without the Guarantor hereby expressly waives any and all rights necessity of resorting to or defenses arising by reason otherwise exhausting remedies in respect of any Applicable Law that would otherwise require other security or collateral interests, and without the necessity at any election time of remedies by Members Mutual having to take recourse against the Borrowers hereunder or HoldCo. The Guarantor waives promptnessagainst any collateral securing the Obligations or otherwise, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, (b) it will not assert any right to require the marshalling of assets of action first be taken against the Standby Purchaser Borrowers or any other Person interested (including any co-guarantor) or pursuit of any other remedy or enforcement any other right, (c) it will not assert any defenses (i) with respect to any change in the transactions contemplated by the Agreementcorporate existence or structure of any Borrower, and all suretyship defenses generally (other than defenses ii) with respect to the payment any Law of any jurisdiction or any event affecting any term of the Guaranteed Obligations obligations of each Guarantor under this Article IV or (iii) as a result or related to any other circumstance that are available to the Standby Purchaser under the Agreement or might constitute a material breach by a Guaranteed Party or its Affiliates defense of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrower or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceGuarantor, payment, performance, (d) it will not assert any claims or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off rights that such Guarantor may have and (e) nothing contained herein shall prevent or in limit action being taken against the Borrowers hereunder, under the other Credit Documents or the other documents and agreements relating to the Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other mannerrights or remedies available in respect thereof, payment or security on account if neither the Borrowers nor the Guarantors shall timely perform their obligations, and the exercise of any such claimrights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors’ obligations hereunder unless as a result thereof, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds and the commitments relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. Each Guarantor agrees that such Guarantor shall have no right of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust recourse to security for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with except through the terms exercise of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms rights of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser subrogation pursuant to Section 4.02 and through the terms and conditions exercise of the Agreement and (ii) rights of contribution pursuant to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSection 4.06.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Borrower hereby irrevocably and unconditionally waives (ai) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any promptness and all rights or defenses arising by reason diligence; (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Lender hereunder or under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Loan Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) instrument relating thereto except to the extent otherwise provided 40 41 herein, (iii) all other notices, demands and protests, and all other formalities of every kind in connection with the Standby Purchaser is relieved enforcement of Borrower's obligations hereunder and under the other Loan Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving Borrower of any of its obligations hereunder or under the Agreementother Loan Documents, (iv) any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral for the Loan or exhaust any right or take any action against Borrower, Guarantor shall similarly automatically or any other Person or against any collateral for the Loan, (v) any right or claim of right to cause a marshalling of Borrower's assets and without further action on (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or to the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsother Loan Documents except to the extent expressly prohibited by applicable Law. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW, BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Term Loan Agreement (Alexanders Inc)
Certain Waivers. (a) To Each Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense of the Company or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any holder of Notes) of the liability of the Company; (b) any defense based on any claim that would otherwise such Guarantor’s obligations exceed or are more burdensome than those of the Company; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any right to require any holder of Notes to proceed against the Company, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in any holder of Note’s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies remedies; (e) any benefit of and any right to participate in any security now or hereafter held by Members Mutual any holder of Notes; (f) any fact or HoldCocircumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of such Guarantor under this Guaranty and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Each Guarantor expressly waives promptnessall presentments, diligencedemands for payment or performance, notice notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty and or of the existence, creation or incurrence of new or additional Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may . This Guaranty shall not be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated affected by the Agreementgenuineness, and all suretyship defenses generally (other than defenses to the payment validity, regularity or enforceability of the Guaranteed Obligations that are available or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Standby Purchaser Guaranteed Obligations which might otherwise constitute a defense to the obligations of any Guarantor under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the and each Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectlyforegoing, in cash or each case, other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until than the defense that the Guaranteed Obligations shall have been satisfied in full. If any amount is fully performed and indefeasibly paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationscash.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Note Purchase Agreement (Franklin Street Properties Corp /Ma/)
Certain Waivers. (a) To The Guarantor waives to the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives law (a) any and all rights or defenses defense arising by reason of any Applicable Law disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Administrative Agent or any other Bank) of the liability of the Borrower; (b) any defense based on any claim that would otherwise the Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any right to require the Administrative Agent or any Bank to proceed against the Borrower, proceed against or exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the Lender ’s power whatsoever and any defense based upon the doctrines of marshalling of assets or of election of remedies remedies; (e) any benefit of and any right to participate in any security now or hereafter held by Members Mutual the Administrative Agent or HoldCoany Bank; (f) any fact or circumstance related to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty; and (g) any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, other than the defense that the Guaranteed Obligations have been fully performed and indefeasibly paid in full in cash. The Guarantor expressly waives promptnessall presentments, diligencedemands for payment or performance, notice notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty and or of the existence, creation or incurrence of new or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of or any of the instrument or agreement evidencing any Guaranteed Obligations, all defenses which may be available or by virtue the existence, validity, enforceability, perfection, non-perfection or extent of any valuationcollateral therefor, stay, moratorium law or other similar law now by any fact or hereafter in effect, any right circumstance relating to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available which might otherwise constitute a defense to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates obligations of the last sentence of Section 8 of Guarantor under this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, and the Guarantor hereby unconditionally and irrevocably agrees not to exercise waives any rights that defenses it may now have or hereafter acquire against the Standby Purchaser in any way relating to any or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement all of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsforegoing.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Mobile Energy waives (a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against the fullest extent permitted by Applicable LawCompany, any other guarantor or any collateral for the Guaranteed Obligations or any guaranty thereof, (b) all defenses to, and all setoffs, counterclaims and claims of recoupment against, the Guarantor hereby expressly waives Guaranteed Obligations that may at any time be available to the Company or any guarantor, (c) (i) notice of acceptance of and all rights or defenses arising by reason intention to rely on this Guaranty, (ii) notice of the issuance of any Applicable Tax-Exempt Indenture Securities under the Tax-Exempt Indenture and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 8.7 and (iv) all other notices that may be required by Law or otherwise to preserve any rights against Mobile Energy under this Guaranty, including any notice of default, demand, dishonor, presentment and protest, (d) diligence, (e) any defense based upon, arising out of or in any way related to (i) any claim that would otherwise require any sale or other disposition of any collateral for the Guaranteed Obligations or any guaranty thereof was not conducted in a commercially reasonable fashion or that a public sale, should the IDB, the Tax-Exempt Indenture Trustee or the Collateral Agent (as the case may be), have elected to so proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual the IDB, the Tax-Exempt Indenture Trustee or HoldCo. The Guarantor waives promptnessthe Collateral Agent (as the case may be) including the exercise by the IDB, diligencethe Tax-Exempt Indenture Trustee or the Collateral Agent (as the case may be), notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligationsrights against any collateral, all defenses which may be available by virtue of any valuationimpaired, stayreduced, moratorium law released or other similar law now or hereafter in effect, otherwise extinguished any right to require that Mobile Energy might otherwise have had against the marshalling of assets of the Standby Purchaser Company or any other Person interested in the transactions contemplated by the Agreementguarantor or against any collateral, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 8.7 and (iiiv) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under claim that this Guaranty in respect of such relieved obligationsshould be strictly construed against the Tax-Exempt Indenture Trustee and (f) ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO MOBILE ENERGY AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS HEREUNDER.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives any Maker and all rights guarantors, sureties and endorsers, severally waive all applicable exemption rights, whether under any state constitution, homestead laws or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessotherwise, and also severally waive diligence, valuation and appraisement, presentment for payment, protest and demand, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for paymentprotest, notice of non-default, notice of intention to accelerate all sums under the Note or the Loan Documents, notice of acceleration of all sums under the Note or the Loan Documents, demand and dishonor and diligence in collection and nonpayment of this Note and all other notices in connection with the delivery, acceptance, performance, default, dishonor and protest, notice or enforcement of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of this Note (except notice of default and any other notice as specifically provided for in this Note, the Guaranteed Obligations that are available to Deed of Trust or the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this GuarantyLoan Documents). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby unconditionally and irrevocably agrees not Maker further waives all benefit that might accrue to exercise Maker by virtue of any rights that it may now have present or hereafter acquire against the Standby Purchaser future laws exempting any Property, or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceproperty, payment, performancereal or personal, or enforcement the proceeds arising from any sale of the Guarantor’s obligations any such property, from attachment, levy, or sale under execution, or in respect providing for any stay of execution to be issued on any judgment recovered on this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off Note or in any other manneraction to foreclose the Deed of Trust, payment injunction against sale pursuant to power of sale, exemption from civil process or security on account extension of time for payment. M▇▇▇▇ agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue of this Note, or any writ of execution issued thereon, may be sold upon any such claimwrit in whole or in part in any order desired by P▇▇▇▇. In addition, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation extent permitted by applicable law, Maker hereby agrees that Payee may bring separate actions on this Note and on any of the immediately preceding sentence at Loan Documents and Maker waives any time prior to rights it may have under the payment in full in immediately available funds law of the Guaranteed Obligations under this Guaranty, state in which any Property is located to object to or raise a defense in any such amount shall be received and held in trust for the benefit action regarding such splitting of Members Mutual and HoldCo, shall be segregated from other property and funds causes of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreementaction. Notwithstanding anything to the contrary contained in this GuarantyNote or the other Loan Documents, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms Sections 51.003 through 51.005 of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is Texas Property Code are not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsbeing waived.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Deed of Trust Note (Equity Inns Inc)
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly and unconditionally waives any and all rights or defenses arising by reason of any Applicable Law that which would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives the Company, promptness, diligence, notice of the acceptance of this Guaranty Guarantee and of the Guaranteed ObligationsObligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence Obligation incurred and all other notices of any of kind (other than notices to Parent or Merger Sub pursuant to the Guaranteed ObligationsMerger Agreement or this Guarantee), all defenses which may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Parent or Merger Sub or any other Person interested in the transactions contemplated by the Agreement, Merger Agreement and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its subsidiaries or Affiliates, defenses to the payment of the Guaranteed Obligations Obligation under the Merger Agreement that are available to the Standby Purchaser under the Agreement Parent or a material Merger Sub or breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 Company of this GuarantyGuarantee). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly and unconditionally and irrevocably agrees not to exercise waives any rights that it may now have or hereafter acquire against the Standby Purchaser Parent or any other Person interested in the transactions contemplated by the Agreement Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s its obligations under or in respect of this Guaranty Guarantee or any other agreement in connection herewiththerewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual the Company against Parent or HoldCo against the Standby Purchaser or such other PersonMerger Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser Parent or such other PersonMerger Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations Obligation shall have been satisfied paid in full. If any amount is shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this GuarantyObligation, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Company, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed ObligationsObligation, in accordance with the terms of the Merger Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense towhether matured or unmatured, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by held as collateral for the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsObligation.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Guaranty Guarantee are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Guarantee (Internet Brands, Inc.)
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the each Guarantor hereby expressly waives any and all rights or defenses arising by reason unconditionally waives: (a) notice of any Applicable Law that would of the matters referred to in Section 3 hereof; (b) all notices which may be required by statute, rule of law or otherwise require (except as expressly required to be given to the Guarantors by any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessFacility Sublease Document) to preserve any rights against the Guarantors hereunder, diligence, including notice of the acceptance of this Guaranty and by the Guaranty Beneficiary, or the creation, renewal, extension, modification or accrual of the Guaranteed ObligationsObligations or notice of any other matters relating thereto, any presentment, demand for paymentdemand, notice of non-performancedishonor, default, dishonor and protest, notice of the incurrence protest or nonpayment of any of damages or other amounts payable under any Facility Sublease Document or any Operative Document; (c) any requirement for the Guaranteed Obligationsenforcement, all defenses which may be available by virtue assertion or exercise of any valuationright, stayremedy, moratorium law power or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations privilege under or in respect of any Facility Sublease Document or any Operative Document, including diligence in collection or protection of or realization upon or in respect of the Obligations or any part thereof; (d) any requirement of diligence; (e) the occurrence of every other condition precedent to which such Guarantor or any Guaranty Beneficiary may otherwise be entitled, except as provided in any Facility Sublease Document or any Operative Document; (f) any requirement to mitigate the damages resulting from a default or termination under any Facility Sublease Document or any Operative Document, except that this shall not relieve the Guaranty Beneficiary of any such obligation; and (g) the right to require the Guaranty Beneficiary to proceed against the Guaranteed Party or any other agreement in connection herewithPerson liable on the Obligations, including, without limitation, to proceed against or exhaust security held from any right of subrogation, reimbursement, exoneration, contribution Guaranteed Party or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claimto pursue any other remedy in the Guaranty Beneficiary’s power whatsoever, remedy or right arises in equity or under contract, statute or common law, including, without limitation, and each Guarantor waives the right to take or receive from have the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and Party first applied to the Guaranteed Obligations, in accordance with the terms discharge of the AgreementObligations. Notwithstanding anything to The Guaranty Beneficiary may, at its election, exercise any right or remedy it might have against the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, Guaranteed Party or release or discharge of, any payment security held by the Guarantor under this GuarantyGuaranty Beneficiary, including the right to foreclose upon any claim, set-off, deduction, defense such security by judicial or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (includingnonjudicial sale, without limitationaffecting or impairing in any way the liability of either Guarantor hereunder, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) except to the extent the Standby Purchaser is relieved Obligations have been paid or satisfied, and each Guarantor waives any defense arising out of the absence, impairment or loss of any right of its obligations under the Agreementreimbursement, the Guarantor shall similarly automatically and without further action on the part of contribution or any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect other right or remedy of such relieved obligations.
(c) The Guarantor against the Guaranteed Party or any such security, whether resulting from such election by the Guaranty Beneficiary, or otherwise. Each Guarantor assumes the responsibility for being and keeping informed of the financial condition of the Guaranteed Party and of all other circumstances bearing upon the risk of nonpayment or nonperformance of the Obligations and agrees that the Guaranty Beneficiary shall not have any duty to advise any Guarantor of information regarding any condition or circumstance or any change in such condition or circumstance. Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by Guaranty Beneficiary has not made any representation to the Agreement and that Guarantor concerning the waivers set forth in this Guaranty are knowingly made in contemplation financial condition of such benefitsthe Guaranteed Party.
Appears in 1 contract
Sources: Membership Interest and Stock Purchase Agreement (Transcanada Corp)
Certain Waivers. The Administrative Borrower waives (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses defense arising by reason of any Applicable Law that would otherwise require disability or other defense of any election of remedies by Members Mutual Loan Party or HoldCo. The Guarantor waives promptnessany Foreign Swap Obligor, diligence, notice or the cessation from any cause whatsoever (including any act or omission of the acceptance of this Guaranty and Administrative Agent or any other Secured Party) of the Guaranteed Obligations, presentment, demand for payment, notice liability of non-performance, default, dishonor and protest, notice any Loan Party or any Foreign Swap Obligor; (b) any defense based on any claim that the Administrative Borrower’s obligations under this Borrower Guaranty exceed or are more burdensome than those of the incurrence Guarantors or any Foreign Swap Obligor; (c) the benefit of any statute of limitations affecting the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, Administrative Borrower’s liability under this Borrower Guaranty; (d) any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested Secured Party to proceed against any other Loan Party or any Foreign Swap Obligor, proceed against or exhaust any security for the Guarantor Primary Obligations or Foreign Subsidiary F/X Obligations, or pursue any other remedy in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Administrative Agent’s or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement Secured Parties’ power whatsoever; (e) any benefit of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim security now or remedy of Members Mutual hereafter held by the Administrative Agent or HoldCo against any other Secured Party; and (f) to the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common fullest extent permitted by law, includingany and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the than payment in full in immediately available funds of all Obligations (other than unasserted contingent obligations not yet due) and termination of all Commitments. For so long as any Obligations remain outstanding, the Guaranteed Obligations under this GuarantyAdministrative Borrower expressly waives all setoffs and counterclaims and all presentments, such amount shall be received demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and held in trust for the benefit all other notices or demands of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid any kind or delivered to Members Mutual or HoldCo in the same form as so received (nature whatsoever with any necessary endorsement or assignment) to be credited and applied respect to the Guaranteed Subsidiary Obligations, in accordance with the terms and all notices of acceptance of this Borrower Guaranty or of the Agreement. Notwithstanding anything to the contrary contained in this Guarantyexistence, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, creation or release incurrence of new or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any additional Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsSubsidiary Obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor Each Grantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessit may have to a judicial hearing, diligenceif any, notice in advance of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence enforcement of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any Secured Party’s rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewithhereunder, including, without limitation, its rights following any right Event of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right Default to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation immediate possession of the immediately preceding sentence at Collateral and exercise its rights with respect thereto.
(b) Secured Party shall not be required to marshal any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust present or future security for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, this Assignment and the Collateral subject to a security interest hereunder), or guaranties of, the Secured Obligations or any of them, or to resort to such claim security or defense if available guaranties in any particular order. Each Grantor hereby agrees that it will not invoke any Law relating to the marshalling of collateral which might cause delay in or impede the enforcement of Secured Party’s rights under this Assignment or any other instrument evidencing any of the Guaranteed Secured Obligations (up to the Cap) is not then required to be due and payable or by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of which any of its obligations under such Secured Obligations is secured or guaranteed, and each Grantor hereby irrevocably waives the Agreement, the Guarantor shall similarly automatically and without further action on the part benefits of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of all such relieved obligationsLaws.
(c) The Guarantor acknowledges that it will receive substantial direct Except for notices specifically provided for herein, each Grantor hereby expressly waives demand, notice, protest, notice of acceptance of this Assignment, notice of loans made, credit extended, collateral received or delivered or other action taken in reliance hereon and indirect benefits from all other demands and notices of any description. With respect both to Secured Obligations and any collateral therefor, each Grantor assents to any extension or postponement of the transactions contemplated time of payment or any other indulgence, to any substitution, of any Person primarily or secondarily liable, to the acceptance of partial payment thereon and the settlement, compromising or adjusting of any thereof, all in such manner and at such time or times as Secured Party may deem advisable. Secured Party shall have no duty as to the protection of the Collateral or any income thereon, nor as to the preservation of rights against prior parties, nor as to the preservation of any rights pertaining thereto except as otherwise required by Law. Secured Party may exercise its rights with respect to the Collateral without resorting or regard to other collateral or sources of reimbursement for liability. Secured Party shall not be deemed to have waived any of its rights upon or under the Credit Agreement or the Collateral unless such waiver be in writing and signed by the Secured Party. No delay or omission on the part of the Secured Party in exercising any right shall operate as a waiver of any right on any future occasion. All rights and remedies of the Secured Party under the Credit Agreement or on the Collateral, whether evidenced hereby or by any other instrument or papers, shall be cumulative and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsmay be exercised singularly or concurrently.
Appears in 1 contract
Certain Waivers. To the extent permitted by law, Pledgor hereby waives and relinquishes, to the maximum extent permitted by applicable laws, all rights and remedies accorded to pledgors, sureties or guarantors and agrees not to assert or take advantage of any such rights or remedies, including: (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require Collateral Agent or the marshalling of assets of the Standby Purchaser other Secured Parties to proceed against Issuer or any other Person interested or to proceed against or exhaust any security held by Collateral Agent or the other Secured Parties at any time or to pursue any other remedy in the transactions contemplated by the Agreement, and all suretyship defenses generally (Collateral Agent’s or any other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
Secured Party’s power before proceeding against Pledgor; (b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not any right to exercise enforce any rights remedy that it Collateral Agent or any other Secured Party may now have or hereafter acquire against the Standby Purchaser Issuer or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy security held by Collateral Agent until the Release Date; (c) any right to require Collateral Agent to give any notices of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common lawany kind, including, without limitation, notices of nonpayment, nonperformance, protest, dishonor, default, delinquency or acceleration, or to make any presentments, demands or protests, except as expressly set forth herein or expressly provided in any of the Note Documents; (d) any right to take assert the bankruptcy or receive from insolvency of Issuer or any other Person as a defense hereunder or as the Standby Purchaser basis for rescission hereof and any defense arising because of Collateral Agent’s or any other Secured Party’s election, in any proceeding instituted under the United States Bankruptcy Code, of the application of Section 1111(b)(2) of the United States Bankruptcy Code; (e) any right under any law purporting to reduce Pledgor’s obligations hereunder if the Secured Liabilities are reduced other than as a result of payment of such Secured Liabilities; (f) any defense based on the repudiation of any Note Document by Issuer or any other Person, directly the failure by Collateral Agent or indirectlyany other Secured Party to enforce any claim against Pledgor, Issuer or any other Person or the unenforceability in cash whole or in part of any Note Document; (g) any right to insist upon, plead or in any manner whatever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, marshaling of assets, redemption or similar law, or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance by Pledgor of its obligations under, or the enforcement by Collateral Agent of, this Agreement; (h) any defense based upon an election of remedies by Collateral Agent or any other Secured Party, including an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of Pledgor, the right of Pledgor to proceed against Issuer or another Person for reimbursement, or both; (i) any defense based on any offset against any amounts which may be owed by any Person to Pledgor for any reason whatsoever; (j) any defense based on any act, failure to act, delay or omission whatsoever on the part of Issuer or any of its Affiliates or the failure by Issuer or any of its Affiliates to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under any Note Document; (k) any defense, setoff or counterclaim which may at any time be available to or asserted by Issuer or any of its Affiliates against Collateral Agent, any other Secured Party or any other Person under any Note Document (other than the occurrence of the Release Date); (l) any duty on the part of Collateral Agent or any other Secured Party to disclose to Pledgor any facts or other property information Collateral Agent or by set-off any other Secured Party may now or hereafter know about Issuer or any of its Affiliates related to the business, operations or condition (financial or otherwise) of Issuer or its properties or to any Note Document or the transactions undertaken pursuant to, or contemplated by, any such Note Document, regardless of whether Collateral Agent or any other Secured Party has reason to believe that any such facts materially increase the risk beyond that which Pledgor intends to assume, or have reason to believe that such facts are unknown to Pledgor, or have a reasonable opportunity to communicate such facts to Pledgor; (m) any defense based on any change in the time, manner or place of any payment under, or in any other mannerterm of, payment any Note Document or security on account any other amendment, renewal, extension, acceleration, compromise or waiver of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated consent or departure from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual any Note Document; and HoldCo hereby agree that (in) the Guarantor may assert, as any defense based upon any borrowing or grant of a defense to, or release or discharge of, any payment by the Guarantor security interest under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms Section 364 of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsUnited States Bankruptcy Code.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Borrower hereby irrevocably and unconditionally waives (ai) To promptness and diligence, (ii) notice of any actions taken by Administrative Agent or any Lender hereunder or under any other Loan Document or any other agreement or instrument relating thereto except to the fullest extent permitted by Applicable Lawotherwise provided herein, (iii) all other notices, demands and protests, and all other formalities of every kind in connection with the enforcement of the Obligations, the Guarantor hereby expressly waives any and all rights omission of or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessdelay in which, diligence, notice of but for the acceptance provisions of this Guaranty and of the Guaranteed ObligationsSection, presentment, demand might constitute grounds for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence relieving Borrower of any of the Guaranteed its Obligations, all defenses which may be available by virtue of (iv) any valuationrequirement that Administrative Agent or any Lender protect, staysecure, moratorium law perfect or insure any lien on or against the Mortgaged Property, or any part thereof, or on or against any other similar law now collateral for the Loan or hereafter in effect, exhaust any right to require the marshalling of assets of the Standby Purchaser or take any action against Borrower, Guarantor or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment or against any of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Mortgaged Property or any other Person interested in collateral for the transactions contemplated by the Agreement that arise from the existenceLoan, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, (v) any right or claim of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim cause a marshalling of Borrower's or remedy Guarantor's assets and (vi) all rights of Members Mutual subrogation or HoldCo against the Standby Purchaser or such other Personcontribution, whether arising by contract or not such claim, remedy operation of law or right arises in equity otherwise by reason of payment by Borrower pursuant hereto or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guarantyother Loan Documents. BORROWER, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCoADMINISTRATIVE AGENT AND EACH LENDER WAIVE ANY RIGHT EACH SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received ACTION OR PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, 69 THE NOTES OR THE LOAN. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (with any necessary endorsement or assignment1) to be credited and applied to the Guaranteed ObligationsINTERPOSE ANY COUNTERCLAIM THEREIN, in accordance with the terms of the AgreementOTHER THAN A COUNTERCLAIM THAT IF NOT BROUGHT IN THE SUIT, ACTION OR PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR LENDERS COULD NOT BE BROUGHT IN A SEPARATE SUIT, ACTION OR PROCEEDING OR WOULD BE SUBJECT TO DISMISSAL OR SIMILAR DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED IN SUCH SUIT, ACTION OR PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR LENDERS AND (2) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsNOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To Each of Purchaser and Seller, for itself and on behalf of its Affiliates and their respective officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors and permitted assigns, intends to and acknowledges and agrees that, from and after the Closing, to the fullest extent permitted by Applicable under applicable Law, including by contractually shortening the Guarantor hereby expressly waives applicable statute of limitations, any and all rights or defenses arising by reason rights, claims and causes of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessaction it may have against such other Party, diligenceits respective Affiliates and its and their respective officers, notice directors, employees, partners, members, managers, agents, attorneys, representatives, successors and permitted assigns relating to the operation of the acceptance of this Guaranty and of Company Group or the Guaranteed ObligationsBusiness prior to the Closing, presentmentwhether arising under, demand for paymentor based upon, notice of non-performanceany Law (including any right, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium whether arising at law or other similar law now or hereafter in effectequity, any right to require the marshalling of assets of the Standby Purchaser seek indemnification, contribution, cost recovery, damages or any other recourse or remedy, including as may arise under common law or CERCLA or any other Environmental Law) are hereby irrevocably waived; provided that nothing contained herein shall release, waive or otherwise affect the rights or obligations of any Person interested in (i) under any Other Transaction Documents or the transactions contemplated by the Confidentiality Agreement, (ii) with respect to any provision herein that survives the Closing (including any rights to indemnification under this Article XI) or (iii) for claims of or causes of action arising from Fraud. Purchaser and all suretyship defenses generally (other than defenses to Seller acknowledge and agree that the payment agreements contained in this Section 11.07 and the representations and warranties contained in Section 4.09 are an integral part of the Guaranteed Obligations that are available to Transactions and the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates inducement of the last sentence of Section 8 of this Guaranty)Parties to consummate the Transactions. For Notwithstanding the avoidance of doubtforegoing, the parties agree that nothing contained in this Guaranty is intended Section 11.07 shall in any way impair (A) the rights and obligations of Purchaser and Seller to modify or supersede resolve disputes with respect to the notice provisions Statement and the calculation of the Agreement.
Final Purchase Price pursuant to Section 1.04 or (b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (iB) the Guarantor may assert, as a defense to, or release or discharge of, any payment by rights and obligations of Purchaser and the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party R&W Insurer under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.R&W Insurance Policy. ARTICLE XII MISCELLANEOUS SECTION
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (John Bean Technologies CORP)
Certain Waivers. (a) To the fullest extent permitted by Applicable Lawit may lawfully do so, NWB agrees that it will not at any time in any manner whatsoever claim or take the Guarantor hereby expressly waives benefit or advantage of, any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessappraisement, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law extension, moratorium, turnover or other similar law redemption Law, or any Law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in effectforce, any right to require which may delay, prevent or otherwise affect the marshalling performance or enforcement of assets of the Standby Purchaser this Agreement or any other Person interested in the transactions contemplated by the AgreementLoan Document, hereby waives all benefit or advantage of all such Laws, and all suretyship defenses generally (other than defenses covenants that it will not hinder, delay or impede under color of any such Law the execution of any power granted to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Secured Creditors in this Agreement or a material breach by a Guaranteed Party or its Affiliates any Loan Document but will suffer and permit the execution of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained every such power as though no such Law were in this Guaranty is intended to modify or supersede the notice provisions of the Agreementforce.
(b) To the extent it may lawfully do so, NWB, on behalf of itself and all who may claim through or under it, including without limitation any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or in any Loan Document or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Agreement or any Loan Document, and consents and agrees that all the Collateral may at any such sale be offered and sold as an entirety. To the fullest extent permitted by Applicable Law, the Guarantor NWB hereby unconditionally waives any and irrevocably agrees not all rights it may at any time have to require any Secured Creditor to exercise its rights and remedies under this Agreement, any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceLoan Document, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement or instrument, at Law or in connection herewithequity, including, without limitation, as between different Persons or against any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate single Person in any claim particular order, method or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct NWB hereby waives, to the extent permitted by applicable Law, presentment, demand, protest and indirect benefits from any notice of any kind (except notices expressly required hereunder or under any Loan Document) in connection with this Agreement, the transactions contemplated Loan Documents and any action taken by a Secured Creditor with respect to the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsCollateral.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable applicable Law, the Guarantor hereby expressly and irrevocably waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCothe Guaranteed Party. The Without limiting the foregoing, the Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty Limited Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations and all other notices of any kind (other than notices expressly required to be provided to Parent pursuant to Section 9.4 of the Merger Agreement to trigger payment of the Guaranteed Obligations), any right to require the Guaranteed Party to proceed against Top Parent, Parent, BBX Intermediate and Merger Sub, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Top Parent, Parent, BBX Intermediate or Merger Sub or any other Person interested in connection with the transactions contemplated by the Merger Agreement, and all guarantor or suretyship defenses generally (other than (i) as a result of payment of the Guaranteed Obligations in full in accordance with their terms, (ii) defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Top Parent, Parent, BBX Intermediate and Merger Sub under the Agreement Merger Agreement, if any (other than defenses arising from the bankruptcy or insolvency of Top Parent, Parent, BBX Intermediate or Merger Sub or as expressly waived in Section 3(b) hereof) or (iii) as a result of the material breach by a the Guaranteed Party of the terms of this Limited Guarantee; the foregoing clauses (i), (ii) and (iii), the “Retained Defenses”). The Guarantor hereby unconditionally and irrevocably agrees that it shall not, directly or indirectly, institute, and shall cause its respective Affiliates not to institute, any Action or make any claim asserting that, or assert as a defense that, this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms. The Guarantor acknowledges that it and its Affiliates of will receive substantial direct and indirect benefits from the last sentence of Section 8 of this Guaranty). For transactions contemplated by the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Merger Agreement.
(b) To the fullest extent permitted by Applicable applicable Law, unless and until the Guaranteed Obligations shall have been paid in full, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Company or any other Person interested in the transactions contemplated by the Agreement of its Affiliates or Representatives, Top Parent, Parent, BBX Intermediate or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Limited Guarantee or any other agreement in connection herewiththerewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser Company or such other Personany of its Affiliates or Representatives, Top Parent, Parent, BBX Intermediate or Merger Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser Company or such other Personany of its Affiliates or Representatives, Top Parent, Parent, BBX Intermediate or Merger Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Limited Guarantee (Black Box Corp)
Certain Waivers. (a) To Guarantor waives, to the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for paymentdemand, notice of non-performance, default, dishonor and protest, notice of the incurrence acceptance, notice of Guaranteed Obligations incurred and all other notices of any of the Guaranteed Obligationskind, other than demand for payment or performance hereunder, and, subject to Section 4 below, all defenses which may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, any right to require the marshalling of Guarantor's assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreementprimarily or secondarily liable with respect to any Guaranteed Obligation, and all suretyship defenses generally (other than defenses generally. Without limiting the generality of the foregoing but subject to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence terms of Section 8 of this Guaranty). For the avoidance of doubt2 above, Guarantor agrees that its obligations hereunder shall not be released or discharged, in whole or in part, or otherwise affected by, (i) subject to Section 4 below, the parties agree that nothing contained in this Guaranty is intended failure of Buyer or any Buyer Indemnitee to modify assert any claim or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not demand or to exercise enforce any rights that it may now have right or hereafter acquire remedy against the Standby Purchaser Seller or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, primarily or enforcement of the Guarantor’s obligations under or in secondarily liable with respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up except to the Cap) is not then required to be due extent that such failure operates as an express and payable by complete bar under the Standby Purchaser pursuant to the terms and conditions of the Purchase Agreement and or Section 2 above); (ii) to the extent the Standby Purchaser is relieved any extensions, compromises, consolidations or renewals of any of its obligations under the Guaranteed Obligations; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waivers, compromises, consolidations, amendments or modifications of any of the terms or provisions of the Purchase Agreement or any Ancillary Agreement; (iv) the addition, the Guarantor shall similarly automatically and without further action on the part substitution or release of any Person primarily or secondarily liable for any of the Guaranteed Obligations; or (v) subject to Section 4 below, any other act or omission which might in any manner or to any extent vary the risk of Guarantor or otherwise operate as a release or discharge of Guarantor, all of which may be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsdone without notice to Guarantor.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its Representatives and Affiliates, that:
(a) To ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP has acted as counsel to the fullest extent permitted by Applicable LawEffective Time Holders and their Affiliates (individually and collectively, the Guarantor hereby expressly waives any “Target Group”) and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessTarget in connection with the negotiation, diligencepreparation, notice of the acceptance execution and delivery of this Guaranty Agreement and the consummation of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreementhereby. Acquiror agrees, and all suretyship defenses generally shall cause the Surviving Corporation to agree, that, following the Closing, such representation and any prior representation of the Target Group or Target by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP (other than defenses or any successor) (the “Target Group Law Firm”) shall not preclude Target Group Law Firm from serving as counsel to the payment Target Group or any director, member, shareholder, partner, officer or employee of Target or the Guaranteed Obligations that are available Target Group, in connection with any litigation, claim or obligation arising out of or relating to the Standby Purchaser under the this Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreementtransactions contemplated thereby.
(b) To Acquiror shall not, and shall cause the fullest extent permitted Surviving Corporation not to, seek or have Target Group Law Firm disqualified from any such representation based upon the prior representation of the Target Group or Target by Applicable LawTarget Group Law Firm. Each of the parties hereto hereby consents thereto and waives any conflict of interest arising solely from such prior representation, and each of such parties shall cause any of its Affiliates to consent to waive any conflict of interest arising from such representation. Each of the Guarantor hereby unconditionally parties hereto acknowledges that such consent and irrevocably agrees not to exercise any rights waiver is voluntary, that it may now has been carefully considered, and that the parties have consulted with counsel or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement have been advised they should do so in connection herewith. The covenants, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification consent and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary waiver contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) Section shall not be deemed exclusive of any other rights to which the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) Target Group Law Firm is not then required to be due and payable by the Standby Purchaser entitled whether pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreementlaw, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationscontract or otherwise.
(c) The Guarantor acknowledges All materials (including communications) that it will receive substantial direct are both (1) contained in files including, but not limited to, electronic files and indirect benefits from records of the law firms listed on Schedule 10.11(c) (the “Transaction Law Firms”) relating to the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby that are held as of the Effective Time solely and exclusively by the Transaction Law Firms and (2) constitute attorney-client privileged and/or work product protected materials (collectively, the “Privileged Material”) shall belong solely to the Target Group and shall not pass to or be claimed by Acquiror or the Surviving Corporation. Accordingly, from and after the Closing, Acquiror and the Surviving Corporation shall not have access to the Privileged Material relating to such engagement except as contemplated by this Agreement. Without limiting the generality of the foregoing and except as contemplated by this Agreement, from and after the Closing, (i) the Target Group (and not Acquiror or the Surviving Corporation) shall be the sole holders of the Privileged Material, and (ii) the Transaction Law Firms shall have no duty whatsoever to reveal or disclose any of such Privileged Material to Acquiror or the Surviving Corporation by reason of any attorney-client relationship between the applicable Transaction Law Firm and the Target Group or Target. Notwithstanding the foregoing, in the event that a dispute arises between Acquiror or its Affiliates (including the Surviving Corporation), on the one hand, and a third party other than any of the Target Group, on the other hand, Acquiror and its Affiliates (including the Surviving Corporation) may assert the attorney-client privilege and/or work product protection to prevent disclosure of confidential communications to such third party; provided, however, that neither Acquiror nor any of its Affiliates (including the Surviving Corporation) may waive such privilege or protection without the prior written consent of the Securityholders’ Agent, which consent may be withheld in their sole and absolute discretion. In the event that Acquiror or any of its Affiliates (including the Surviving Corporation) is legally required to access or obtain a copy of all or a portion of the Privileged Material (including as required to assert the attorney-client privilege (e.g., to create a privilege log as to the Privileged Material)) and such action is advisable in the opinion of Acquiror’s counsel, then Acquiror shall immediately (and, in any event, within 2 days) notify the Securityholders’ Agent in writing so that it can immediately (and, in any event, within 5 court days) seek a protective order on behalf of the Target Group. If such a protective order is not sought within the applicable time frame, then the Securityholders’ Agent shall immediately release all materials requested by the Acquiror or any of its Affiliates (including the Surviving Corporation) to the Acquiror or any of its Affiliates (including the Surviving Corporation).
(d) Notwithstanding the foregoing, neither the Acquiror nor its Affiliates (including the Surviving Corporation) is waiving any work product protection or any attorney-client privilege (including relating to the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby) in connection with any third-party Litigation. Except for the Privileged Materials, the Acquiror and its Affiliates (including the Surviving Corporation) shall be the sole holders of any and all attorney-client privileged or work product protected materials that is held or otherwise controlled by the waivers set forth Target Group including all materials in this Guaranty are knowingly made in contemplation the files of such benefitsthe Transaction Law Firms that relate to the Target Group.
Appears in 1 contract
Sources: Merger Agreement (INPHI Corp)
Certain Waivers. (a) To Each of the fullest extent permitted by Applicable LawParties acknowledges and agrees that:
(i) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP (or any successor) (the “Seller Group Law Firm”) has acted as counsel to Sellers and the Sellers’ Representative (individually and collectively, the Guarantor hereby expressly waives any “Seller Group”), and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptnessthe Company in connection with the negotiation, diligencepreparation, notice of the acceptance execution and delivery of this Guaranty Agreement and the consummation of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreementhereby. Buyer agrees, and all suretyship defenses generally (other than defenses shall cause the Company to the payment agree, that, following consummation of the Guaranteed Obligations that are available transactions contemplated hereby, such representation and any prior representation of the Company by Seller Group Law Firm shall not preclude Seller Group Law Firm from serving as counsel to any member of the Standby Purchaser under the Seller Group, in connection with any litigation, claim or obligation arising out of or relating to this Agreement or a material breach the transactions contemplated hereby.
(ii) Buyer shall not, and shall cause the Company not to, seek or have Seller Group Law Firm disqualified from any such representation based upon the prior representation of the Company by a Guaranteed Party or Seller Group Law Firm. Each of the Parties hereby consents thereto and waives any conflict of interest arising from such prior representation, and each of the Parties shall cause any of its Affiliates to consent to waive any conflict of interest arising from such representation. Each of the last sentence of Section 8 of this Guaranty)Parties acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the Parties have consulted with counsel or have been advised they should do so in connection herewith. For the avoidance of doubtThe covenants, the parties agree that nothing consent and waiver contained in this Guaranty is intended Section 10.14 shall not be deemed exclusive of any other rights to modify which Seller Group Law Firm are entitled whether pursuant to Law, contract or supersede the notice provisions of the Agreementotherwise.
(b) To All communications between the fullest extent permitted by Applicable LawSeller Group or the Company, on the Guarantor hereby unconditionally one hand, and irrevocably agrees not Seller Group Law Firm, on the other hand, relating to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (the “Privileged Communications”) shall be deemed to be attorney-client privileged and the expectation of client confidence relating thereto shall belong solely to the Seller Group and shall not pass to or be claimed by Buyer or the Agreement that arise Company. Accordingly, Buyer and the Company shall not have access to any Privileged Communications or to the files of Seller Group Law Firm relating to such engagement from and after Closing. Without limiting the existence, payment, performance, or enforcement generality of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewithforegoing, includingfrom and after the Closing, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, Seller Group (and not Buyer or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that Company) shall be the Standby Purchaser could assert against any Guaranteed Party under the terms sole holders of the Agreement (includingattorney-client privilege with respect to such engagement, without limitationand none of Buyer or the Company shall be a holder thereof, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved that files of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty Seller Group Law Firm in respect of such relieved obligations.
engagement constitute property of the client, only the Seller Group (cand not Buyer nor the Company) The Guarantor acknowledges shall hold such property rights and (iii) Seller Group Law Firm shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer or the Company by reason of any attorney-client relationship between Seller Group Law Firm and the Company. Notwithstanding the foregoing, in the event that it will receive substantial direct a dispute arises between Buyer or its Affiliates (including the Company), on the one hand, and indirect benefits from a third party other than any of the transactions contemplated Seller Group, on the other hand, Buyer and its Affiliates (including the Company) may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, that neither Buyer nor any of its Affiliates (including the Company) may waive such privilege without the prior written consent of the Sellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed. In the event that Buyer or any of its Affiliates (including the Company) is legally required by Governmental Order or otherwise legally required to access or obtain a copy of all or a portion of the Agreement Privileged Communications, to the extent (x) permitted by applicable Law, and (y) advisable in the opinion of Buyer’s counsel, then Buyer shall promptly notify the Sellers’ Representative in writing so that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsSellers’ Representative can seek a protective order.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable Law, the Guarantor hereby expressly waives Each Grantor consents to any and all rights extension or defenses arising by reason waiver of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCoSecured Obligation. The Guarantor waives promptnessSecured Party shall have no duty with respect to the preservation or protection of the Collateral or any income thereof or the preservation or protection of any rights against other parties with respect thereto. The Secured Party may exercise any rights it may have hereunder against any Grantor or the Collateral, after having given notice to any such Grantor as provided herein or under applicable law, whether or not it has given notice to any other Person or otherwise taken any action against any other Person, or other assets, for the enforcement of its rights in respect of any Secured Obligation. Without limiting the generality of the foregoing: to the extent that the Secured Obligations are now or hereafter secured or otherwise supported by any assets or property other than the Collateral or the Guaranty of each Grantor or by the guarantee, endorsement, assets or property of any other Person, then the Secured Party shall have the right in its sole discretion to determine which rights, security, Liens or remedies the Secured Party shall at any time pursue, foreclose upon, relinquish, subordinate, modify or take any other action with respect to, without in any way modifying or affecting any of them, or any of the Secured Party's rights hereunder.
(b) Each Grantor hereby unconditionally waives: (i) promptness and diligence, ; (ii) notice of or proof of reliance by the Beneficiaries upon this Agreement, including the Guaranty of such Grantor, or acceptance of this Guaranty Agreement and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, such Guaranty; (iii) notice of the incurrence of any of Obligation by the Guaranteed ObligationsBorrower or the renewal, all defenses which may be available by virtue extension or accrual of any valuation, stay, moratorium law Obligation or other similar law now of any circumstances affecting the Borrower's financial condition or hereafter in effect, ability to perform the Obligations; (iv) notice of any right to require actions taken by the marshalling of assets of Beneficiaries or the Standby Purchaser Borrower or any other Person interested in the transactions contemplated by the Agreementunder any Loan Document or any other agreement or instrument relating thereto; (v) all other notices, demands and protests, and all suretyship defenses generally (other than defenses to formalities of every kind in connection with the payment enforcement of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence obligations of Section 8 such Grantor or any other Grantor hereunder, the omission of or delay in which, but for the provisions of this GuarantySection 20(b). For , might constitute grounds for relieving such Grantor of its obligations hereunder; (vi) any requirement that the avoidance of doubtBeneficiaries protect, the parties agree that nothing contained in this Guaranty is intended to modify secure, perfect or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Lawinsure any Lien or any property subject thereto, the Guarantor hereby unconditionally and irrevocably agrees not to exercise or exhaust any rights that it may now have right or hereafter acquire take any action against the Standby Purchaser Borrower or any other Person interested or any collateral; and (vii) each other circumstance, other than payment of the Obligations in the transactions contemplated by the Agreement full, that arise from the existence, payment, performancemight otherwise result in a discharge or exoneration of, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as constitute a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its Grantor's obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationshereunder.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Ascent Assurance Inc)
Certain Waivers. (a) To Guarantor waives, to the fullest extent permitted by Applicable Lawlaw, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for paymentdemand, notice of non-performance, default, dishonor and protest, notice of the incurrence acceptance, notice of Guaranteed Obligations incurred and all other notices of any of the Guaranteed Obligationskind, other than demand for payment or performance hereunder, and, subject to Section 4 below, all defenses which may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, any right to require the marshalling of Guarantor’s assets of the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreementprimarily or secondarily liable with respect to any Guaranteed Obligation, and all suretyship defenses generally (other than defenses generally. Without limiting the generality of the foregoing but subject to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence terms of Section 8 of this Guaranty). For the avoidance of doubt2 above, Guarantor agrees that its obligations hereunder shall not be released or discharged, in whole or in part, or otherwise affected by, (i) subject to Section 4 below, the parties agree that nothing contained in this Guaranty is intended failure of Buyer or any Buyer Indemnitee to modify assert any claim or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not demand or to exercise enforce any rights that it may now have right or hereafter acquire remedy against the Standby Purchaser Seller or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, primarily or enforcement of the Guarantor’s obligations under or in secondarily liable with respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up except to the Cap) is not then required to be due extent that such failure operates as an express and payable by complete bar under the Standby Purchaser pursuant to the terms and conditions of the Purchase Agreement and or Section 2 above); (ii) to the extent the Standby Purchaser is relieved any extensions, compromises, consolidations or renewals of any of its obligations under the Guaranteed Obligations; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waivers, compromises, consolidations, amendments or modifications of any of the terms or provisions of the Purchase Agreement or any Ancillary Agreement; (iv) the addition, the Guarantor shall similarly automatically and without further action on the part substitution or release of any Person primarily or secondarily liable for any of the Guaranteed Obligations; or (v) subject to Section 4 below, any other act or omission which might in any manner or to any extent vary the risk of Guarantor or otherwise operate as a release or discharge of Guarantor, all of which may be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsdone without notice to Guarantor.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. (a) To the fullest extent permitted by Applicable LawLaws, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law law that would otherwise require any election of remedies by Members Mutual the Company or HoldCothe JCP Entities. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed ObligationsObligations and all other notices of any kind (other than notices expressly required to be provided to (x) Parent or Merger Sub pursuant to Section 8.07 of the Merger Agreement or (y) Parent pursuant to Section 4(f) of the Exchange and Termination Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement or the Exchange and Termination Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Parent or Merger Sub under the Merger Agreement, the Exchange and Termination Agreement or a material breach by a Guaranteed Party the Company or its Affiliates the JCP Entities of the last sentence of Section 8 of this GuarantyGuarantee). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that which it may now have acquire by way of subrogation under the Merger Agreement or hereafter acquire against the Standby Purchaser Exchange and Termination Agreement, by any payment made hereunder or any other Person interested in the transactions contemplated by the Agreement that arise from the existenceotherwise, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds all of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action outstanding on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty date such subrogation is sought shall have been paid and/or performed in respect of such relieved obligationsfull.
(cb) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and the Exchange and Termination Agreement and that the waivers set forth in this Guaranty Guarantee are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Guarantee (Edgen Group Inc.)
Certain Waivers. Mobile Energy waives (a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against the fullest extent permitted by Applicable LawCompany, any other guarantor or any collateral for the Guaranteed Obligations or any guaranty thereof, (b) all defenses to, and all set offs, counterclaims and claims of recoupment against, the Guarantor hereby expressly waives Guaranteed Obligations that may at any time be available to the Company or any guarantor, (c)
(i) notice of acceptance of and all rights or defenses arising by reason intention to rely on this Guaranty, (ii) notice of the issuance of any Applicable Securities under this Indenture and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 14.7 and (iv) all other notices that may be required by Law or otherwise to preserve any rights against Mobile Energy under this Guaranty, including any notice of default, demand, dishonor, presentment and protest, (d) diligence, (e) any defense based upon, arising out of or in any way related to (i) any claim that would otherwise require any sale or other disposition of any collateral for the Guaranteed Obligations or any guaranty thereof was not conducted in a commercially reasonable fashion or that a public sale, should the Trustee or the Collateral Agent (as the case may be), have elected to so proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual the Trustee or HoldCo. The Guarantor waives promptnessthe Collateral Agent (as the case may be), diligence, notice of including the acceptance of this Guaranty and of exercise by the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of Trustee or the incurrence Collateral Agent (as the case may be) of any of the Guaranteed Obligationsrights against any collateral, all defenses which may be available by virtue of any valuationimpaired, stayreduced, moratorium law released or other similar law now or hereafter in effect, otherwise extinguished any right to require that Mobile Energy might otherwise have had against the marshalling of assets of the Standby Purchaser Company or any other Person interested in the transactions contemplated by the Agreementguarantor or against any collateral, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 14.7 and (iiiv) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under claim that this Guaranty in respect of such relieved obligations.
should be strictly construed against the Trustee and (cf) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO MOBILE ENERGY AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS HEREUNDER. 77
Appears in 1 contract
Certain Waivers. ACAS agrees that the obligations of ACAS hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) the failure of the Company to assert any claim or demand or to enforce any right or remedy against Parent; (b) any change in the time, place or manner of payment of any of the Obligations; (c) any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations; (d) any change in the corporate existence, structure or ownership of Parent; (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or, (f) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate ACAS or sureties (other than pursuant to the Cap), in each case which may conflict with the terms of this Commitment Agreement; (g) the adequacy of any other means the Company may have of obtaining repayment of any of the Obligations; or (h) the existence of any claim or set-off which ACAS or any of its affiliates may have at any time against Parent, Merger Sub or the Company in connection with the Obligations or otherwise. To the fullest extent permitted by Applicable Lawlaw, the Guarantor ACAS hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that law which would otherwise require any election of remedies by Members Mutual or HoldCothe Company. The Guarantor ACAS waives promptness, diligence, notice of the acceptance of this Guaranty Commitment Agreement and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence any Obligations incurred and all other notices of any of kind (except for notices to be provided to Parent and its counsel in accordance with the Guaranteed ObligationsMerger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Parent or any other Person person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than fraud or willful misconduct by the Company or any of its subsidiaries, defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Parent under the Merger Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 Company of this GuarantyCommitment Agreement). For ACAS acknowledges that it will receive substantial direct and indirect benefits from the avoidance transactions contemplated by the Merger Agreement and that the waivers set forth in this Commitment Agreement are knowingly made in contemplation of doubtsuch benefits. The Company hereby covenants and agrees that it shall not institute, and shall cause its respective affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the parties agree Merger Agreement or the transactions contemplated thereby, against any ACAS or Parent Affiliate (as defined below) except for claims against ACAS under this Commitment Agreement, and ACAS hereby covenants and agrees that nothing contained it shall not institute, and shall cause its respective affiliates not to institute, any proceeding asserting that this Commitment Agreement is illegal, invalid or unenforceable in this Guaranty is intended accordance with its terms, subject to modify the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or supersede the notice provisions of the Agreement.
other similar laws affecting creditors’ rights generally, and general equitable principles (b) To the fullest extent permitted by Applicable Law, the Guarantor whether considered in a proceeding in equity or at law). ACAS hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement Parent that arise from the existence, payment, performance, or enforcement of the GuarantorACAS’s obligations Obligations under or in respect of this Guaranty Commitment Agreement or any other agreement in connection herewiththerewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Members Mutual or HoldCo the Company against the Standby Purchaser Parent or such other Personperson, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other PersonParent, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Commitment Agreement shall have been satisfied paid in fullfull in cash. If any amount is shall be paid to the Guarantor ACAS in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds cash of the Guaranteed Obligations and all other amounts payable under this GuarantyCommitment Agreement, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCothe Company, shall be segregated from other property and funds of the Guarantor ACAS and shall forthwith be paid or delivered to Members Mutual or HoldCo the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed ObligationsObligations and all other amounts payable under this Commitment Agreement, in accordance with the terms of the Merger Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Sources: Commitment Agreement (American Capital Strategies LTD)
Certain Waivers. (a) To the fullest extent permitted by Applicable LawExcept as otherwise expressly provided herein or other applicable Loan Document, the Guarantor Borrowers hereby expressly waives any and all rights or defenses arising by reason of any Applicable Law that would otherwise require any election of remedies by Members Mutual or HoldCo. The Guarantor waives waive promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for paymentdemand, notice of non-performance, default, dishonor and protest, notice of any and all advances of the incurrence Loan made under this Agreement and the Notes, notice of occurrence of any Default or Event of Default (except to the extent notice is expressly required to be given pursuant to the terms of this Agreement or any of the other Loan Documents), or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Guaranteed ObligationsObligations hereunder, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement and the other such Loan Documents (except as aforesaid). The Borrowers hereby waive all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling marshaling of assets of the Standby Purchaser or Borrower and any other entity or Person interested in the transactions contemplated by the Agreementprimarily or secondarily liable with respect to any of such Obligations, and all suretyship defenses generally generally. The Borrowers hereby assent to, and waive (other than defenses to the payment i) notice of, any extension or postponement of the Guaranteed time for the payment, or place or manner for payment, compromise, refinancing, consolidation or renewals of any of such Obligations that are available to hereunder, the Standby Purchaser under acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Agreement or a material breach and the other Loan Documents, any and all other indulgences whatsoever by a Guaranteed Party or its Affiliates the Lenders in respect of any of the last sentence Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any time or times, of Section 8 any security for any of this Guaranty). For such Obligations or the avoidance of doubtaddition, the parties agree that nothing contained substitution or release, in this Guaranty is intended to modify whole or supersede the notice provisions in part, of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser Borrowers or any other entity or Person interested primarily or secondarily liable for any such Obligation and (ii) any suretyship type defense (except payment in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement full of the Guarantor’s obligations under or in respect Obligations). Without limiting the generality of this Guaranty or the foregoing, the Borrowers assent to any other agreement action or delay in connection herewithacting or failure to act on the part of the Lenders, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution failure strictly or indemnification and diligently to assert any right or to participate pursue any remedy which might, but for the provisions of this Section 3.04, afford grounds for terminating, discharging or relieving the Borrowers, in whole or in part, from any claim of their obligations under this Section 3.04, it being the intention of the Borrowers that, so long as any of such Obligations hereunder remains unsatisfied, the obligations of the Borrowers under this Section 3.04 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of the Borrowers under this Section 3.04 shall not be diminished or remedy rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to the Borrowers or any Lender. Nothing contained in this Section 3.04 shall, or shall be interpreted to, limit the provisions of Members Mutual or HoldCo Section 10.02.
(b) The provisions of this Section 3.04 are made for the benefit of the Lenders and their permitted successors and assigns, and may be enforced by them from time to time against the Standby Purchaser Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders or such other Person, whether successors or not such claim, remedy assigns first to marshal any of their claims or right arises in equity to exercise any of their rights against the Borrowers or under contract, statute to exhaust any remedies available to them against the Borrowers or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in resort to any other manner, source or means of obtaining payment of any of the Obligations hereunder or security on account to elect any other remedy. The provisions of this Section 3.04 shall remain in effect until all of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) to the extent the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligationsotherwise fully satisfied.
(c) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
Appears in 1 contract
Certain Waivers. Each of the Guarantors waives: ---------------
(a) To any requirement, and any right to require, that any right or power be exercised or any action be taken against either Borrower or any collateral for the fullest extent permitted Guaranteed Obligations;
(b) all defenses to, and all setoffs, counterclaims and claims of recoupment against, the Guaranteed Obligations that may at any time be available to any other Guarantor (and agrees that payments due from such Guarantor hereunder shall be made without any reduction or deduction whatsoever, including any reduction or deduction for any setoff, counterclaim or claim of recoupment otherwise available to such Guarantor or to either Borrower);
(i) notice of acceptance of and intention to rely hereunder, (ii) notice of the making or renewal of any Loans or other extensions of credit hereunder and of the incurrence or renewal of any other Guaranteed Obligations, (iii) notice of any of the matters referred to in Section 8.05 and (iv) all other notices that may be required by Applicable LawLaw or otherwise to preserve any rights against any Guarantor hereunder, the Guarantor hereby expressly waives including any notice of default, demand, dishonor, presentment and all rights protest;
(d) diligence;
(e) any defense based upon, arising out of or defenses arising by reason in any way related to (i) any claim that any sale or other disposition of any Applicable Law collateral for the Guaranteed Obligations was not conducted in a commercially reasonable fashion or that would otherwise require a public sale, should the Guaranteed Parties have elected so to proceed, was, in and of itself, not a commercially reasonable method of sale, (ii) any claim that any election of remedies by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed ObligationsParties, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of including the incurrence exercise by the Guaranteed Parties of any of the Guaranteed Obligationsrights against any collateral, all defenses which may be available by virtue of any valuationimpaired, stayreduced, moratorium law released or other similar law now or hereafter in effect, otherwise extinguished any right to require the marshalling of assets of the Standby Purchaser that any Guarantor might otherwise have had against either Borrower or against any other Person interested in the transactions contemplated by the Agreementcollateral, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection herewith, including, without limitation, including any right of subrogation, reimbursement, exoneration, reimbursement or contribution or indemnification and any right to participate in obtain a deficiency judgment, (iii) any claim or remedy based upon, arising out of Members Mutual or HoldCo against the Standby Purchaser or such other Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid way related to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up matters referred to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement in Section 8.06 and (iiiv) to any claim that the extent Loan Documents should be strictly construed against the Standby Purchaser is relieved of any of its obligations under the Agreement, the Guarantor shall similarly automatically and without further action on the part of any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.Parties; and
(cf) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefitsALL OTHER DEFENSES UNDER ANY APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO ANY GUARANTOR AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS LIABILITIES AND OBLIGATIONS HEREUNDER.
Appears in 1 contract
Certain Waivers. (a) To Borrower hereby irrevocably and unconditionally waives to the fullest extent permitted by Applicable Lawlaw (i) promptness and diligence, the Guarantor hereby expressly waives any and all rights or defenses arising by reason (ii) notice of any Applicable Law that would otherwise require any election of remedies actions taken by Members Mutual or HoldCo. The Guarantor waives promptness, diligence, notice of the acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any of the Guaranteed Obligations, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Standby Purchaser Administrative Agent or any other Person interested in the transactions contemplated by the Agreement, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligations that are available to the Standby Purchaser Lender hereunder or under the Agreement or a material breach by a Guaranteed Party or its Affiliates of the last sentence of Section 8 of this Guaranty). For the avoidance of doubt, the parties agree that nothing contained in this Guaranty is intended to modify or supersede the notice provisions of the Agreement.
(b) To the fullest extent permitted by Applicable Law, the Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Standby Purchaser or any other Person interested in the transactions contemplated by the Agreement that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Guaranty Loan Document or any other agreement in connection herewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right instrument relating hereto or thereto except to participate in any claim or remedy of Members Mutual or HoldCo against the Standby Purchaser extent otherwise provided herein or such other PersonLoan Documents, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Standby Purchaser or such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Guaranteed Obligations shall have been satisfied in full. If any amount is paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Obligations under this Guaranty, such amount shall be received and held in trust for the benefit of Members Mutual and HoldCo, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to Members Mutual or HoldCo in the same form as so received (with any necessary endorsement or assignmentiii) to be credited and applied to the Guaranteed Obligations, in accordance with the terms of the Agreement. Notwithstanding anything to the contrary contained in this Guaranty, Members Mutual and HoldCo hereby agree that (i) the Guarantor may assert, as a defense to, or release or discharge of, any payment by the Guarantor under this Guaranty, any claim, set-off, deduction, defense or release that the Standby Purchaser could assert against any Guaranteed Party under the terms of the Agreement (including, without limitation, any such claim or defense if available that any of the Guaranteed Obligations (up to the Cap) is not then required to be due and payable by the Standby Purchaser pursuant to the terms and conditions of the Agreement and (ii) except to the extent otherwise provided herein or in the Standby Purchaser is relieved other Loan Documents, all other notices, demands and protests, and all other formalities of every kind in connection with the enforcement of Borrower’s obligations hereunder and under the other Loan Documents, the omission of or delay in which, but for the provisions of this Section, might constitute grounds for relieving Borrower of any of its obligations hereunder or under the Agreementother Loan Documents, (iv) any requirement that Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral for the Loan or exhaust any right or take any action against Borrower, Guarantor shall similarly automatically or any other Person or against any collateral for the Loan, (v) any right or claim of right to cause a marshalling of Borrower’s assets and without further action on the part (vi) all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant hereto or to any Person be relieved of its corresponding Guaranteed Obligations under this Guaranty in respect of such relieved obligations.
other Loan Document. TO THE EXTENT PERMITTED BY LAW, BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (cW) The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Agreement and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM. C056442/0303008/1557238.9
Appears in 1 contract
Sources: Loan Agreement (Newmarket Corp)