Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following: (i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor; (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor; (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding; (iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor; (v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor; (vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations; (vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor; (A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or (ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance. (b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 7 contracts
Sources: Second Lien Credit Agreement (LRR Energy, L.P.), Guaranty and Pledge Agreement (Linn Energy, LLC), Guaranty and Pledge Agreement (Linn Energy, LLC)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors understand and agrees agree that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Seller of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Seller, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such Guarantor under the guarantee contained in Guarantors from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against the Pledged Collateral or any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Seller may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 7 contracts
Sources: Guaranty and Pledge Agreement (New Century TRS Holdings Inc), Guaranty and Pledge Agreement (New Century Financial Corp), Guaranty and Pledge Agreement (New Century Financial Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Administrative Agent or the Lenders, upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between the Borrower or the Guarantor, on the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or itself with respect to the Guaranteed Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthis Agreement, the other Transaction Documents, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Administrative Agent or the Lenders, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by it or the Borrower against the Administrative Agent or any other Person against any Guaranteed Creditor;
the Lenders, (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Guaranteed Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
instance or (biv) any other defense, set-off or counterclaim of a guarantor or a surety. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as that it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law or equity, of the Administrative Agent against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Administrative Agent, the Lenders, and their successors, permitted endorsees, permitted transferees and permitted assigns, until all the Obligations and the Guaranteed Obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Credit Agreement, the Borrower may be free from any due and payable Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Administrative Agent and the Lenders as follows:
(i) To the extent permitted by law, Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Administrative Agent or the Lenders, any claim or defense based upon, an election of remedies by the Administrative Agent which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Borrower for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Borrower, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Borrower and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the financial condition of the Borrower, of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than the Administrative Agent and the Lenders for such information and will not rely upon the Administrative Agent or the Lenders for any such information. Guarantor hereby waives its right, if any, to require the Administrative Agent or the Lenders to disclose to Guarantor any information which they may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed this Agreement and related Transaction Documents and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Agreement, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance Liens or security interests of any legal proceedingskind or nature granted by the Borrower or any other guarantor or Person to the Administrative Agent, now or at any time and from time to time in the future.
Appears in 6 contracts
Sources: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1; and all dealings between Debtor and any of the Grantors, on the one hand, and the Collateral Agent, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Debtor or any of the Grantors with respect to the Secured Obligations. Each Grantor understands and agrees that the guarantee guaranty contained in this ARTICLE II isArticle VI and the grant of the security interests pursuant to Section 3.1 shall be, and shall be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and performance without regard to
(a) the validity or enforceability of the Purchase Money Notes Guaranty, and each Guarantor hereby waives any defense of a surety or guarantor Purchase Money Notes or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Ancillary Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Collateral Agent, for the benefit of the Secured Parties, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Debtor or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofCollateral Agent, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Debtor or such Guarantor), Grantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Debtor for the Borrower Secured Obligations, or of such Guarantor Grantor under the guarantee guaranty contained in this ARTICLE IIArticle VI and the grant of the security interests pursuant to Section 3.1, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any GuarantorGrantor, any Guaranteed Creditor the Collateral Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the BorrowerDebtor, any other Guarantor Grantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerDebtor, any other Guarantor Grantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerDebtor, any other Guarantor Grantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Collateral Agent against any GuarantorGrantor. For the purposes hereof of this Agreement, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 5 contracts
Sources: Reimbursement, Security and Guaranty Agreement, Reimbursement, Security and Guaranty Agreement, Reimbursement, Security and Guaranty Agreement
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Forbearance Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Guaranteed Creditor;
Affiliate of the Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Lender or any of its Affiliates, (c) any document presented in connection with the Forbearance Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of the Lender or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Guaranteed Creditor of its Affiliates) against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Forbearance Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 5 contracts
Sources: Guaranty (Franklin Credit Management Corp/De/), Guaranty (Franklin Credit Management Corp/De/), Guaranty (Franklin Credit Management Corp/De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and hereby agrees that its obligations under this Guaranty constitute a guarantee of payment when due and not of collection. Guarantor waives any and all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between Seller and Guarantor, on the one hand, and Buyer, on the other hand, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives promptness, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Documentagreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, (iii) any requirement that Buyer exhaust any right to take any action against Seller or any other Person prior to or contemporaneously with proceeding to exercise any right against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution Guarantor under this Guaranty or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Seller and Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, Obligations or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that Buyer may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Buyer against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and its successors and assigns thereof, and shall include inure to the commencement benefit of Buyer and continuance its permitted successors, endorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantor to proceed against Seller, any other guarantor or any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed about the financial condition of Seller, the status of other guarantor, if any, of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives the right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Transaction Documents and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsliens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
Appears in 4 contracts
Sources: Guaranty (Claros Mortgage Trust, Inc.), Guaranty (Claros Mortgage Trust, Inc.), Guaranty (Granite Point Mortgage Trust Inc.)
Guaranty Absolute and Unconditional. (a) Each The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) The Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentRepurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations.
(f) The Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 4 contracts
Sources: Guaranty (Taberna Realty Finance Trust), Guaranty (Taberna Realty Finance Trust), Guaranty (Taberna Realty Finance Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorSecured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed CreditorSecured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor Grantor or in the relationship between the Borrower and any ObligorGrantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGrantor;
(A) any Guaranteed CreditorSecured Party’s election, in any proceeding instituted under chapter Chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorSecured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors Secured Parties or any of them for any reason; or (G) failure by any Guaranteed Creditor Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 4 contracts
Sources: Guaranty and Collateral Agreement (ABC Funding, Inc), Second Lien Guaranty and Collateral Agreement (ABC Funding, Inc), Second Lien Guaranty and Collateral Agreement (Petro Resources Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Agreement shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, the full and each Guarantor hereby waives punctual payment and performance by the Issuer of the Obligations and not of collectibility only and is in no way conditioned upon any defense requirement that the Noteholder first attempt to collect any of a surety or guarantor the Obligations from the Issuer or any other obligor on any obligations arising in connection with Guarantor, without regard to (a) the validity, regularity or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged Secured Note Agreement or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed other Secured Note Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty thereof or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Noteholder, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person Issuer against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower Noteholder or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Issuer or such any Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge or defense of a surety or guarantor or any other obligor on any obligation of the Borrower for Issuer from the Borrower Obligations, or of such any Guarantor under the guarantee contained in from this ARTICLE IIAgreement, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Noteholder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Issuer or any other Person or against the Collateral or any other collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Noteholder to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Issuer or any such other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Issuer or any such other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of the Noteholder against the Guarantors. This Agreement shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Noteholder, and each of its permitted successors, indorsees, transferees and assigns, until all the Obligations permitted shall have been satisfied by performance and payment in full and the Secured Note Agreement and the other Secured Note Documents shall have been terminated, notwithstanding that from time to time during the term of the Secured Note Agreement the Issuer may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 4 contracts
Sources: Secured Note Agreement (General Motors Co), Secured Note Agreement (General Motors Co), Secured Note Agreement (General Motors Co)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement, Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives its right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
Appears in 3 contracts
Sources: Guaranty (Pennymac Financial Services, Inc.), Guaranty (Pennymac Financial Services, Inc.), Guaranty (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any punctual payment and performance by the Borrowers of the following Obligations and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result only of any of the following:
their collectibility (a) without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Documentthe Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Borrowers against any Guaranteed Creditor;
the Lender, (iii) any defense by the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution Borrowers to the Obligations or lack of power any subordination of the Borrower Lien on the Collateral or any other Guarantor or any other Person at any time liable for the payment of all or part priority of the Obligations, including any discharge ofLender in the Collateral, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
instance and (b) is in no way conditioned upon any requirement that the Lender first attempt to collect any of the Obligations from the Borrowers. The Guarantor understands and agrees that this Guaranty shall be construed as a continuing, absolute and unconditional guarantee without regard to waiver, forbearance, compromise, release, settlement, the dissolution, liquidation, reorganization or other change regarding either Borrower, or either Borrower being the subject of any case or proceeding under any bankruptcy or other law for the protection of debtors or creditors, or any other action or matter that would release a guarantor. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Lender against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender, and continuance its successors, indorsees, transferees and assigns, until all the Obligations and the Obligations of any legal proceedingsthe Guarantor under this Guaranty shall have been satisfied by payment in full and the Agreement shall be terminated, subject to the provisions of Section 9 hereof.
Appears in 3 contracts
Sources: Guaranty (Aames Financial Corp/De), Guaranty (Aames Financial Corp/De), Guaranty (Aames Financial Corp/De)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors understand and agrees agree that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Sellers of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Sellers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by a Seller against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of a Seller from the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in Guarantors from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor a Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor a Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, endorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Sellers may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 3 contracts
Sources: Guaranty (Novastar Financial Inc), Guaranty and Pledge Agreement (Novastar Financial Inc), Guaranty (Novastar Financial Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or the Guarantor; provided that upon any other Guarantor;such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement.
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any ObligorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any ObligorGuarantor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its the Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (Exterran Partners, L.P.), Guaranty Agreement (Universal Compression Partners, L.P.), Senior Secured Credit Agreement (Universal Compression Partners, L.P.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors understand and agrees agree that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Sellers of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Sellers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by a Seller against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of a Seller from the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in Guarantors from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor a Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor a Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Sellers may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 3 contracts
Sources: Guaranty (Novastar Financial Inc), Guaranty (Novastar Financial Inc), Guaranty (Novastar Financial Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 3 contracts
Sources: Guaranty (Radian Group Inc), Guaranty (Granite Point Mortgage Trust Inc.), Guaranty (RAIT Financial Trust)
Guaranty Absolute and Unconditional. (a) Each The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between each Borrower and the Guarantor, on the one hand, and the Lender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon each Borrower or the Guarantor with respect to the Obligations. The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives regularity or enforceability of the Credit Agreement, any defense of a surety or guarantor Note or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Borrower against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the each Borrower or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Lender against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to be benefit of the commencement Lender, and continuance its successors and permitted assigns, until all the Obligations and the Guaranteed Obligations shall have been satisfied by payment in full and the obligation of the Lender to make Loans under the Credit Agreement shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement each Borrower may be free from any legal proceedingsObligations.
Appears in 3 contracts
Sources: Parent Guaranty (Anthracite Capital Inc), Parent Guaranty (Anthracite Capital Inc), Parent Guaranty (Anthracite Capital Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Purchasers upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Purchasers, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of the Purchase Agreement or any Guaranteed other Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Purchasers, (ii) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Purchasers) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Guaranteed Creditor;
the Purchasers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Purchasers may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Purchasers to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Purchasers against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 3 contracts
Sources: Guaranty (Giga Tronics Inc), Guaranty (DPW Holdings, Inc.), Guaranty (Avalanche International, Corp.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Purchaser upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Purchaser, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Note, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Purchaser, (ii) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Purchaser) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Guaranteed Creditor;
the Purchaser, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Purchaser may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Purchaser to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Purchaser against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 3 contracts
Sources: Guaranty (Ault Alliance, Inc.), Guaranty (Alzamend Neuro, Inc.), Guaranty (Ault Alliance, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Lender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives to the extent permitted by law diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense payment without regard to (a) the validity or enforceability of a surety or guarantor the Loan Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud or misconduct by Lender) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Lender to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Lender against any Guarantor. For the purposes hereof “hereof, "demand” " shall include the commencement and continuance of any legal proceedings.
Appears in 3 contracts
Sources: Guaranty Agreement (Universal Property Development & Acquisition Corp), Guaranty Agreement (Universal Property Development & Acquisition Corp), Guaranty Agreement (Universal Property Development & Acquisition Corp)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrower of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Lender first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrower without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentFinancing Facility Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such the Guarantor), ) (other than payment or performance by the Borrower) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Lender against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender, and continuance its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Financing Facility Agreement shall be terminated, notwithstanding that from time to time during the term of the Financing Facility Agreement the Borrower may be free from any legal proceedingsObligations.
Appears in 3 contracts
Sources: Guaranty (New Century Financial Corp), Guaranty (New Century TRS Holdings Inc), Guaranty (New Century Financial Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set‑offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off set‑off or counterclaim (other than a defense of payment or performancepayment) which may at any time be available to or be asserted by Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 2 contracts
Sources: Guaranty (Pennymac Financial Services, Inc.), Guaranty (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller Parties or the Guarantor, on the one hand, and the Administrative Agent on behalf of Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller Parties or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Administrative Agent, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller Parties against the Administrative Agent or any other Person against any Guaranteed Creditor;
Buyers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller Parties or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller Parties for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller Parties or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller Parties or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller Parties or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent on behalf of Buyers against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Administrative Agent, the Buyers and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller Parties may be free from any Guaranteed Creditor Obligations. LEGAL02/36936773v5
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Administrative Agent and Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Administrative Agent and Buyers any claim or defense based upon, an election of remedies by the Administrative Agent and Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller Parties or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller Parties, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller Parties and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller Parties’ financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Administrative Agent for such information and will not rely upon the Administrative Agent for any such information. Absent a written request for such information by the Guarantor to the Administrative Agent, Guarantor hereby waives its right, if any, to require the Administrative Agent to disclose to Guarantor any information which the Administrative Agent may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Administrative Agent, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller Parties or any other guarantor to the Administrative Agent, now or at any time and from time to time in the future.
Appears in 2 contracts
Sources: Guaranty (Walter Investment Management Corp), Guaranty (Walter Investment Management Corp)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Sellers of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from any Seller, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Sellers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Sellers or any other Person or against any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Buyer against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Buyer, and continuance its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Sellers may be free from any legal proceedingsObligations.
Appears in 2 contracts
Sources: Guaranty (New Century Financial Corp), Guaranty (New Century Financial Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guarantee of paymentthe full and punctual payment and performance of the Guarantor Obligations (and not of their collectability only) without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor the Master Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Repurchase Document, any of the Borrower Guarantee Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, Guarantor or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any a demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on Seller or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Buyer to make any such demand, to demand or pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation obligations or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Buyer against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of Buyer, and its successors and permitted indorsees, transferees and assigns, until all the Repurchase Obligations shall have been satisfied by performance and payment in full and the Master Repurchase Agreement and the other Repurchase Documents shall have been terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement, Seller may be free from any Repurchase Obligations.
Appears in 2 contracts
Sources: Guaranty Agreement (Home Loan Servicing Solutions, Ltd.), Guaranty Agreement (Altisource Residential Corp)
Guaranty Absolute and Unconditional. (a) Each Except as otherwise set forth in Section 2 hereof, Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Except as otherwise set forth in Section 2 hereof, Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) When making any demand hereunder or . Except as otherwise set forth in Section 2 hereof, when pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 2 contracts
Sources: Limited Guaranty (Gleacher & Company, Inc.), Limited Guaranty (Gleacher & Company, Inc.)
Guaranty Absolute and Unconditional. (a) Each Except as otherwise set forth in Section 2 hereof, Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Except as otherwise set forth in Section 2 hereof, Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) When making any demand hereunder or . Except as otherwise set forth in Section 2 hereof, when pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 2 contracts
Sources: Limited Guaranty (Gleacher & Company, Inc.), Limited Guaranty (Gleacher & Company, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyers upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Sellers or Guarantor, on the one hand, and Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Sellers or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe VF1 Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyers, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Sellers against Buyers, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Sellers for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Sellers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyers to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Sellers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyers against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Buyers, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the VF1 Repurchase Agreement Sellers may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyers any claim or defense based upon, an election of remedies by Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Sellers or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Sellers, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Sellers and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of each Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Buyers for such information and will not rely upon Buyers for any such information. Absent a written request for such information by Guarantor to Buyers, Guarantor hereby waives its right, if any, to require Buyers to disclose to Guarantor any information which Buyers may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the VF1 Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyers, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Sellers or any other guarantor to Buyers, now or at any time and from time to time in the future.
(iv) Guarantor is not required to register as an “investment company” under the Investment Company Act of 1940, as amended from time to time.
(c) Guarantor hereby covenants that it shall not merge, consolidate, amalgamate, liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) or sell all or substantially all of its assets; provided that Guarantor may merge or consolidate with (i) any wholly owned subsidiary of Guarantor, (ii) any other Person if Guarantor is the surviving entity; or (iii) with the prior written consent of the Buyers and the Administrative Agent, so long that, in each case, after giving effect thereto, no Default would exist hereunder.
Appears in 2 contracts
Sources: Repurchase Agreement (PennyMac Mortgage Investment Trust), Guaranty (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller Parties or Guarantors, on the one hand, and the Administrative Agent on behalf of Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller Parties or Guarantors with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Administrative Agent, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller Parties against the Administrative Agent or any other Person against any Guaranteed Creditor;
Buyers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller Parties or such Guarantor), Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller Parties for the Borrower Obligations, or of such any Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any either Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller Parties or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller Parties or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller Parties or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent on behalf of Buyers against either Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantors and their successors and assigns thereof, and shall inure to the benefit of the Administrative Agent, the Buyers and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantors under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller Parties may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, each Guarantor hereby agrees, acknowledges, and represents and warrants to the Administrative Agent and Buyers as follows:
(i) Such Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Administrative Agent and Buyers any claim or defense based upon, an election of remedies by the Administrative Agent and Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes such Guarantor’s subrogation rights, rights to proceed against the Seller Parties or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantors to proceed against the Seller Parties, against any Guarantorother guarantor, or against any other person or security.
(ii) Such Guarantor is presently informed of the financial condition of the Seller Parties and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Such Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of each Seller Party’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Administrative Agent for such information and will not rely upon the Administrative Agent for any such information. Absent a written request for such information by such Guarantor to the Administrative Agent, such Guarantor hereby waives its right, if any, to require the Administrative Agent to disclose to such Guarantor any information which the Administrative Agent may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Such Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Administrative Agent, such Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller Parties or any other guarantor to the Administrative Agent, now or at any time and from time to time in the future.
Appears in 2 contracts
Sources: Guaranty (PennyMac Mortgage Investment Trust), Guaranty (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Administrative Agent or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Credit Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Guaranteed Creditor;
Affiliate of Administrative Agent, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Administrative Agent or any of its Affiliates, (c) any document presented in connection with the Credit Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Administrative Agent or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent (or any Guaranteed Creditor of its Affiliates) against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Administrative Agent (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Credit Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 2 contracts
Sources: Limited Recourse Guaranty (Franklin Credit Holding Corp/De/), Limited Recourse Guaranty (Franklin Credit Holding Corp/De/)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any punctual payment and performance by the Borrower of the following Obligations and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result only of any of the following:
their collectibility (a) without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Documentthe Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
the Lender, (iii) any defense by the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution Borrower to the Obligations or lack of power any subordination of the Borrower Lien on the Collateral or any other Guarantor or any other Person at any time liable for the payment of all or part priority of the Obligations, including any discharge ofLender in the Collateral, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
instance and (b) is in no way conditioned upon any requirement that the Lender first attempt to collect any of the Obligations from the Borrower. The Guarantor understands and agrees that this Guaranty shall be construed as a continuing, absolute and unconditional guarantee without regard to waiver, forbearance, compromise, release, settlement, the dissolution, liquidation, reorganization or other change regarding the Borrower, or the Borrower being the subject of any case or proceeding under any bankruptcy or other law for the protection of debtors or creditors, or any other action or matter that would release a guarantor. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Lender against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender, and continuance its successors, indorsees, transferees and assigns, until all the Obligations and the Obligations of any legal proceedingsthe Guarantor under this Guaranty shall have been satisfied by payment in full and the Agreement shall be terminated, subject to the provisions of Section 9 hereof.
Appears in 2 contracts
Sources: Guaranty (Aames Financial Corp/De), Guaranty (Aames Financial Corp/De)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and hereby agrees that its obligations under this Guaranty constitute a guarantee of payment when due and not of collection. Guarantor waives any and all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between Seller and Guarantor, on the one hand, and Buyer, on the other hand, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives promptness, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, (iii) any requirement that Buyer exhaust any right to take any action against Seller or any other Person prior to or contemporaneously with proceeding to exercise any right against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution Guarantor under this Guaranty or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Seller and Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, Obligations or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) When making any demand hereunder or . Except as otherwise set forth herein, when pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that Buyer may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Buyer against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and its successors and assigns thereof, and shall include inure to the commencement benefit of Buyer and continuance its permitted successors, endorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantor to proceed against Seller, any other guarantor or any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed about the financial condition of Seller, the status of other guarantor, if any, of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives the right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Transaction Documents and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsliens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
Appears in 2 contracts
Sources: Guaranty (TPG RE Finance Trust, Inc.), Guaranty (TPG RE Finance Trust, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the extent permitted by law, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Outstanding Amount. Each Guarantor understands and agrees that the guarantee guaranty contained in this ARTICLE II is, and Section 1 shall be construed as, a continuing, completed, as an absolute and unconditional guarantee guaranty of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time payment without regard to time held by any Guaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performancepayment) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim person against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) Lender. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations Outstanding Amount or any right of offset with respect thereto, and any failure by any Guaranteed Creditor the Lender to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Lender against any Guarantor. For the purposes hereof “demand” No election to proceed in one form of action or against any party, or on any obligation shall include the commencement and continuance constitute a waiver of any legal proceedingsLender’s right to proceed in any other form of action or against any Guarantor or any other Person, or diminish the liability of any Guarantor, or affect the right of such Lender to proceed against any Guarantor for any deficiency, except to the extent such L▇▇▇▇▇ realizes payment by such action, notwithstanding the effect of such action upon any Guarantor’s rights of subrogation, reimbursement or indemnity, if any, against the Borrower, any other Guarantor or any other Person. Each Guarantor further agrees that, subject to the Lender giving prior written notice to each Guarantor, from time to time: (a) increase or decrease the principal amount of the Outstanding Amount and additional indebtedness or obligations of the Borrower under the Loan Documents (b) extend or change the time, manner, place or terms of any payment under any Loan Document, including by an increase or decrease in the Origination Fee on any Outstanding Amount or any fee or other amount payable under such Loan Document, in each case, by an amendment, modification or renewal of any Loan Document or other writing; (c) extend the time for the Borrower’s performance of or compliance with any term, covenant or agreement on Borrowers’ part to be performed or observed under any Loan Document, or waive such performance or compliance, or consent to the failure in or departure from such performance, all in such manner and upon such terms as the Lender may deem proper; or (d) release, surrender, exchange, compromise or settle the obligations guaranteed hereunder or any portion thereof, (e) sell, release, surrender, exchange or compromise any security held by L▇▇▇▇▇ for any of the obligations guaranteed hereunder, (f) discharge or release, in whole or in part, any Guarantor or any other person liable for the payment and performance of all or any part of the Outstanding Amount, and (g) permit, consent to, or take any action, in each case (a) through (f), as the Lender deems necessary or advisable, in its sole discretion, and without impairing, abridging, releasing or affecting the liability of the Guarantors for the full payment and performance of the obligations guaranteed hereunder.
Appears in 2 contracts
Sources: Guaranty Agreement (AgeX Therapeutics, Inc.), Guaranty Agreement (AgeX Therapeutics, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Sellers or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Sellers or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of any Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower any Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor each Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Sellers may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against any GuarantorSeller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against any Seller, against any other guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Sellers and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of each Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Sellers or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 2 contracts
Sources: Guaranty (Altisource Residential Corp), Guaranty (Altisource Residential Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon this Guaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this ARTICLE II isGuaranty; and all dealings between the Borrower or the Guarantors, on the one hand, and the Lender, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty, waives notice of acceptance of this Guaranty, notice of extensions of credit to the Borrower from time to time, notice of default, diligence, presentment, notice of dishonor, protest and demand for payment. This Guaranty is and shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guaranty of payment, and each Guarantor hereby waives any defense of a surety payment without regard to (a) the validity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of Purchase Agreement, the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentNotes, any of the Borrower other Transaction Documents, any of the Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
or for the benefit of the Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor the Guarantors under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . This Guaranty is intended to be a surety of each Guarantor on behalf of Lender. When making any demand hereunder or otherwise the Lender is pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral security, guarantee Guaranty or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or joint and several liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Lender against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsGuarantors.
Appears in 2 contracts
Sources: Secured Credit Facility and Warrant Purchase Agreement (Environmental Tectonics Corp), Secured Credit Facility and Warrant Purchase Agreement (Environmental Tectonics Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe PC Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the PC Repurchase Agreement Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives its right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the PC Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
(iv) Guarantor is not required to register as an “investment company” under the Investment Company Act of 1940, as amended from time to time.
(c) Guarantor hereby covenants that it shall not merge, consolidate, amalgamate, liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) or sell all or substantially all of its assets; provided that Guarantor may merge or consolidate with (i) any wholly owned subsidiary of Guarantor, (ii) any other Person if Guarantor is the surviving entity, or (iii) with the prior written consent of the Administrative Agent, so long that, in each case, after giving effect thereto, no Default would exist hereunder.
Appears in 2 contracts
Sources: Guaranty (PennyMac Mortgage Investment Trust), Guaranty (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Forbearance Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Guaranteed Creditor;
Affiliate of Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Lender or any of its Affiliates, (c) any document presented in connection with the Forbearance Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Lender or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Guaranteed Creditor of its Affiliates) against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Forbearance Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 2 contracts
Sources: Guaranty (Franklin Credit Management Corp/De/), Guaranty (Franklin Credit Management Corp/De/)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe PMH Repurchase Agreement, the other PMH Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, endorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the PMH Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, the Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) The Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes the Guarantor’s (x) subrogation rights, (y) rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) The Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, the Guarantor hereby waives its right, if any, to require the Buyer to disclose to the Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) The Guarantor has independently reviewed the PMH Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, the Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 2 contracts
Sources: Guaranty (PennyMac Mortgage Investment Trust), Guaranty (Pennymac Financial Services, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guarantee of paymentthe full and punctual payment and performance of the Guarantor Obligations (and not of their collectability only) without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor the Master Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Repurchase Document, any of the Borrower Guarantee Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower any Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower any Seller for the Borrower Obligations, Guarantor or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any a demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on any Seller or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor such Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Buyer to make any such demand, to demand or pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation obligations or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Buyer against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of Buyer, and its successors and permitted indorsees, transferees and assigns, until all the Repurchase Obligations shall have been satisfied by performance and payment in full and the Master Repurchase Agreement and the other Repurchase Documents shall have been terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement, Sellers may be free from any Repurchase Obligations.
Appears in 2 contracts
Sources: Guaranty Agreement (Altisource Residential Corp), Limited Guaranty Agreement (Altisource Residential Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors understand and agrees agree that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Seller of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Seller, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such Guarantor under the guarantee contained in Guarantors from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Seller may be free from any Guaranteed Creditor against Obligations. This Guaranty shall remain in full force and effect notwithstanding any Guarantor. For assignment of the purposes hereof “demand” shall include Seller’s rights and obligations under the commencement and continuance of any legal proceedingsMaster Repurchase Agreement to an affiliate.
Appears in 2 contracts
Sources: Guaranty Agreement (New Century Financial Corp), Guaranty Agreement (New Century Financial Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor Guarantor, by joining herein, understands and agrees that the guarantee contained in this ARTICLE II Section 14 is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Guaranteed Note Document, any of the Borrower Guarantied Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed CreditorHolder;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower any Obligor or any other Person against any Guaranteed CreditorHolder;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower any Obligor or any other Guarantor or any other Person at any time liable for the payment of all or part of the Guarantied Obligations, including any discharge of, or bar or stay against collecting, any Guarantied Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower any Obligor or any other Guarantor, or any changes in the shareholders Equity Interest holders of any Obligor or the Borrower or any other Guarantor;
(v) any change in the corporate entity existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligorother Guarantor;
(vi) the fact that any Collateral collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guarantied Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral collateral for the Guarantied Obligations;
(vii) the absence of any attempt to collect the Guarantied Obligations or any part of them from any ObligorObligor or any Guarantor;
(A) any Guaranteed CreditorHolder’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrowerany Obligor, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed CreditorHolder’s claim (or claims) for repayment of the Guarantied Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors Holders or any of them for any reason; or (G) failure by any Guaranteed Creditor Holder to file or enforce a claim against the Borrower any Obligor or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 14.4 (with or without notice to or knowledge of the Borrower any Obligor or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Obligors for the Borrower Guarantied Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IISection 14, in bankruptcy or in any other instanceinstance (other than payment or performance).
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrowerany Obligor, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guarantied Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrowerany Obligor, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrowerany Obligor, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Holder against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Sources: Note Purchase Agreement (Glori Energy Inc.), Note Purchase Agreement (Glori Energy Inc.)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Sellers of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from any Seller, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Sellers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Sellers or any other Person or against any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Buyer against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and its successors and assigns thereof, and shall include inure to the commencement benefit of the Buyer, and continuance its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement, the Sellers may be free from any legal proceedingsObligations.
Appears in 2 contracts
Sources: Guaranty (New Century Financial Corp), Guaranty (New Century Financial Corp)
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Administrative Agent or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between any Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be released, discharged or otherwise affected as a result of any of the following:
altered by (ia) the invalidity invalidity, irregularity, non-perfection or unenforceability of the Credit Agreement, any Guaranteed Documentother Credit Document or any Hedge Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any other Guaranteed Creditor;
Party, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full) which that may at any time be available to or be asserted by the a Borrower or any other Person Guarantor against the Administrative Agent or any other Guaranteed Creditor;
Party whether in connection with the Credit Documents or any unrelated transactions, (iiic) any release, impairment, non perfection or invalidity of any direct or indirect security for any obligation of a Borrower, any other Guarantor or any other Person, (d) any change in the insolvencycorporate existence, bankruptcy arrangementstructure or ownership of a Borrower, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at or any time liable for of their respective Subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, any other Guarantor or any other Person or any of their properties or assets or any resulting release or discharge of any obligation of a Borrower, any other Guarantor or any other Person under any Credit Document, (e) any provision of applicable law or regulation purporting to prohibit the payment of all or part of the Obligations, including any discharge of, or bar or stay against collectingObligation by a Borrower, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower other Guarantor or any other GuarantorPerson, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixf) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for any of the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any other Guaranteed Creditor Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any other Guaranteed Creditor to make any such demand, Party to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until all the Obligations under the Credit Documents shall have been satisfied by payment and performance in full, the Commitments shall be terminated), notwithstanding that from time to time during the term of the Credit Agreement and any Guaranteed Creditor against Hedge Agreement the Credit Parties may be free from any Obligations. A Guarantor shall automatically be released from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Company or a Restricted Subsidiary), in each case, as permitted by the Credit Agreement, (ii) the designation in accordance with the Credit Agreement of the Guarantor as an Unrestricted Subsidiary or (iii) to the extent that such Guarantor is not an Immaterial Subsidiary due to operation of clause (a) of the definition of “Immaterial Subsidiary”, upon the release of the guarantee referred to in such clause. In addition to any release permitted by the preceding sentence, the Administrative Agent may release any Guarantor with the prior written consent of the Required Lenders; provided that any release of all or substantially all the Guarantors shall require the consent of all the Lenders. In connection with any such release, the Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsAdministrative Agent.
Appears in 2 contracts
Sources: Guaranty (Freescale Semiconductor, Ltd.), Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Sellers of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Sellers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor (including the Collateral) or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-set off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person a Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of a Seller from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor a Seller or any other Person or against any collateral security (including the Collateral) or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor a Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Buyer against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and permitted assigns thereof, and shall include inure to the commencement benefit of Buyer, and continuance its successors, endorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement one or more Sellers may be free from any legal proceedingsObligations.
Appears in 1 contract
Sources: Guaranty (Novastar Financial Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives its right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe MSRVF1 Repurchase Agreement, the SPIADVF1 Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the MSRVF1 Repurchase Agreement or the SPIADVF1 Repurchase Agreement Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives its right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the MSRVF1 Repurchase Agreement, the SPIADVF1 Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Administrative Agent on behalf of Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Administrative Agent; (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Administrative Agent or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reasonBuyers; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixiii) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied implied, or available as a matter of law, of the Administrative Agent on behalf of Buyers against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Administrative Agent, the Buyers and their respective successors, indorsees, transferees, and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Administrative Agent and Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Administrative Agent and Buyers any claim or defense based upon, an election of remedies by the Administrative Agent and Buyers which in any manner impairs, affects, reduces, releases, destroys, and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Administrative Agent for such information and will not rely upon the Administrative Agent for any such information. Absent a written request for such information by the Guarantor to the Administrative Agent, Guarantor hereby waives its right, if any, to require the Administrative Agent to disclose to Guarantor any information which the Administrative Agent may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Administrative Agent, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Administrative Agent, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty (InPoint Commercial Real Estate Income, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any and all of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. This Guaranty shall remain in full force and effect notwithstanding any change in the corporate relationship of Guarantor and Seller. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives any defense performance without regard to (a) the validity or enforceability of a surety the Agreement or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off or counterclaim defense (other than a defense of payment or performanceperformance of the Obligations or any other defense available to Seller as set forth in the Agreement) set-off or counterclaim, which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise Buyer is pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Guarantor r Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise ' pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or of any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Buyer against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between any Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon any Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against any Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of any Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of a Seller from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor a Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto a Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Sellers or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Sellers or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Sellers against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Sellers for the Borrower ObligationsObligations (other than payment or performance), or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Sellers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Sellers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and Buyer’s successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Sellers may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Sellers or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Sellers, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Sellers and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Sellers’ financial condition, the commencement status of other guarantors, if any, and continuance of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Sellers or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and hereby agrees that its obligations under this Guaranty constitute a guarantee of payment when due and not of collection. Guarantor waives any and all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between Seller and Guarantor, on the one hand, and Buyer, on the other hand, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives promptness, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Documentagreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, (iii) any requirement that ▇▇▇▇▇ exhaust any right to take any action against Seller or any other Person prior to or contemporaneously with proceeding to exercise any right against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution Guarantor under this Guaranty or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Seller and Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, Obligations or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that Buyer may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Buyer against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and its successors and assigns thereof, and shall include inure to the commencement benefit of Buyer and continuance its successors and permitted assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full.
(a) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by ▇▇▇▇▇ which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantor to proceed against Seller, any other guarantor or any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed about the financial condition of Seller, the status of other guarantor, if any, of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives the right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Transaction Documents and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsliens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty Agreement (Starwood Credit Real Estate Income Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of the Obligations and not of their collectibility only and is in no way conditioned upon any requirement that Lender first attempt to collect any of the Obligations from any related Borrower, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Loan Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Lender, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the any related Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the any related Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor related Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor related Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person related Borrower or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Lender against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of Lender, and continuance its successors, indorsees, transferees and assigns, until all the Secured Obligations and the Obligations of Guarantor under this Guaranty shall have been satisfied by performance and payment in full and the Loan Agreement and the other Loan Documents shall have been terminated, notwithstanding that from time to time during the term of the Loan Agreement, Borrower may be free from any legal proceedingsSecured Obligations.
Appears in 1 contract
Sources: Limited Guaranty Agreement (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon Buyer’s and Seller’s representations concerning the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty (RAIT Financial Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors understand and agrees agree that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Seller of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Seller, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such Guarantor under the guarantee contained in Guarantors from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Seller may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Sources: Guaranty (American Business Financial Services Inc /De/)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe PMH Repurchase Agreement, the other PMH Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, endorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the PMH Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, the Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) The Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes the Guarantor’s (x) subrogation rights, (y) rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) The Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, the Guarantor hereby waives its right, if any, to require the Buyer to disclose to the Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) The Guarantor has independently reviewed the PMH Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, the Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
(iv) Guarantor is not required to register as an “investment company” under the Investment Company Act of 1940, as amended from time to time.
(c) Guarantor hereby covenants that it shall not merge, consolidate, amalgamate, liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) or sell all or substantially all of its assets; provided that Guarantor may merge or consolidate with (i) any wholly owned subsidiary of Guarantor, (ii) any other Person if Guarantor is the surviving entity, or (iii) with the prior written consent of the Administrative Agent, so long that, in each case, after giving effect thereto, no Default would exist hereunder.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty Agreement shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of its Guaranty Obligations and Guaranty Expenses and not of their collectability only and is in no way conditioned upon any requirement that Buyer or Repo Agent first attempt to collect any of the Guaranty Obligations or Guaranty Expenses from Sellers or upon (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor the Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Facility Document, any of the Borrower Guaranty Obligations or any other collateral security Guaranty Expenses therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer or Repo Agent, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Sellers against Buyer or Repo Agent, (c) the Borrower lack of authority of Sellers to execute or deliver the Repurchase Agreement, (d) any change in the time, manner or place of payment of, or in any other term of, or amendment to the Repurchase Agreement, (e) any waiver or consent by Buyer or Repo Agent with respect to any provisions of the Repurchase Agreement or any other Person against compromise or release of any Guaranteed Creditor;
of the obligations thereunder, (iiif) the absence of any action to enforce the Repurchase Agreement, to recover any judgment against Sellers or to enforce a judgment against Sellers under the Repurchase Agreement, (g) the occurrence of any Event of Default or Default under the Repurchase Agreement, (h) the existence of bankruptcy, insolvency, bankruptcy arrangementreorganization or similar proceedings involving Sellers, (i) any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, collateral securing the Repurchase Agreement, (j) any change in the laws, rules or regulations of any jurisdiction, (k) any present or future action of any Governmental Authority or court amending, varying, reducing or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the obligations of Sellers under the Repurchase Agreement or of Guarantor under this Guaranty Agreement, (l) the reorganization, adjustment, composition, liquidation, disability, dissolution merger or lack consolidation of power of the Borrower either Seller into or with any other corporation or entity, (m) if any payment by a Seller to Buyer or Repo Agent is held to constitute a preference under bankruptcy laws, or for any reason Buyer or Repo Agent is required to refund such payment or pay such amount to such Seller, Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixn) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty Agreement, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Repo Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust (i) such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Sellers or any other Person or against any collateral security or guarantee for the Borrower Obligations or (ii) any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Repo Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Sellers or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Repo Agent against any Guarantor. For This Guaranty Agreement shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and its successors and assigns, and shall include inure to the commencement benefit of Buyer and continuance of any legal proceedingsRepo Agent, and their respective successors, indorsees, transferees and assigns, until the Termination Date shall have occurred.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Guarantor Obligations and notice of or, proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Guarantor Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall, likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Guarantor Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Master Repurchase Agreement, the other Repurchase Documents, any of the Borrower Obligations Guarantor Obligations, or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvencyany other, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Guarantor Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guarantor Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Buyer against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and its successors and assigns thereof, and shall include inure to the commencement benefit of the Buyer, and continuance successors, endorsees, transferees and assigns, until all the Guarantor Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Master Repurchase Agreement Seller may be free from any legal proceedingsGuarantor Obligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyers upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and the Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyers, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against the Borrower Buyers, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Buyers may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyers to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyers against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyers, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement or the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyers any claim or defense based upon, an election of remedies by the Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyers for such information and will not rely upon the Buyers for any such information. Absent a written request for such information by Guarantor to the Buyers, Guarantor hereby waives its right, if any, to require the Buyers to disclose to Guarantor any information which the Buyers may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyers, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to the Buyers, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performancepayment) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(a) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty (Ny Credit Corp.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Series 2023-MSRVF2 Repurchase Agreement, the Series 2020-SPIADVF1 Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Series 2023-MSRVF2 Repurchase Agreement or the Series 2020-SPIADVF1 Repurchase Agreement Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Series 2023-MSRVF2 Repurchase Agreement, the Series 2020-SPIADVF1 Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrower of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Lender first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Borrower without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentFinancing Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for from the Borrower Obligations, or of such Guarantor under the guarantee contained in Guarantors from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender against the Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lender, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Guaranty shall have been satisfied by payment in full and the Financing Documents shall be terminated, notwithstanding that from time to time during the term of the Financing Documents the Borrower may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Sources: Residual Financing Facility Agreement (New Century Financial Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guarantee of paymentthe full and punctual payment and performance of the Guarantor Obligations (and not of their collectability only) without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor the Master Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Repurchase Document, any of the Borrower Guarantee Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower a Seller for the Borrower Obligations, Guarantor or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any a demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on any Seller or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Buyer to make any such demand, to demand or pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person a Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation obligations or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Buyer against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of Buyer, and its successors and permitted indorsees, transferees and assigns, until all the Repurchase Obligations shall have been satisfied by performance and payment in full and the Master Repurchase Agreement and the other Repurchase Documents shall have been terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement, one or more Sellers may be free from any Repurchase Obligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Sellers and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) The Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Sellers or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that the Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentRepurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by a Seller against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Sellers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Sellers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Sellers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Sellers may be free from any Guaranteed Creditor against any Guarantor. For Obligations.
(f) The Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Guarantor Obligations and notice of or, proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Guarantor Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall, likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty or with respect to the Guarantor Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Agreement, the other Facility Documents, any of the Borrower Obligations Guarantor Obligations, or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvencyany other, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Guarantor Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as that it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guarantor Obligations or any right of offset with respect theretothereto (without duplication or recovery), and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Guarantor Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Agreement Seller may be free from any Guaranteed Creditor Guarantor Obligations, and the Agreement has been terminated in writing.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security;
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guarantor Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor; and
(iii) Guarantor has independently reviewed and is familiar with the terms of the Agreement, including, for the avoidance of doubt, Section 16 of the Agreement, which the Guarantor hereby acknowledges and agrees to, the Facility Documents and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty (loanDepot, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by Seller of the Guaranteed Obligations and not of collectibility only and in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that RBS first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
from Seller without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Documentthe Agreements, any of the Borrower Obligations Guaranteed Obligations, or any other collateral security therefor the Guaranteed Obligations or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
RBS, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
RBS, (iii) any defense by Seller to the insolvencyGuaranteed Obligations or the ownership of RBS, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of in the Borrower Purchased Items or any other Guarantor or subordination of any other Person at any time liable for Lien on the payment of all or part of the Obligations, including any discharge ofPurchased Items, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller from the Borrower for the Borrower Guaranteed Obligations, or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . Guarantor understands and agrees that this Guaranty shall be construed as a continuing, absolute and unconditional guarantee without regard to waiver, forbearance, compromise, release, settlement, the dissolution, liquidation, reorganization or other change regarding Seller, or Seller being the subject of any case or proceeding under any bankruptcy or other law for the protection of debtors or creditors, or any other action or matter that would release a guarantor. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor RBS may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, RBS to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of RBS against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of RBS and its successors, indorsees, transferees and assigns, until all the Guaranteed Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full and each Agreement shall be terminated, notwithstanding that from time to time during the term of the Repurchase Agreement Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations and subject to the purposes hereof “demand” shall include the commencement and continuance provisions of any legal proceedingsSection 9 hereof.
Appears in 1 contract
Sources: Guaranty (PHH Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor's subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller's financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Forbearance Agreement, any Guaranteed other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Guaranteed Creditor;
Affiliate of Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Lender or any of its Affiliates, (c) any document presented in connection with the Forbearance Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Lender or any of its Affiliates with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Guaranteed Creditor of its Affiliates) against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Forbearance Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by it or Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement Seller may be free from any Guaranteed Creditor Obligations.
(a) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include financial condition of Seller, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty Agreement (Pennymac Financial Services, Inc.)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Sellers of the Obligations and not of their collectability only and is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Sellers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by a Seller against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Sellers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Sellers or any other Person or against any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Sellers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Buyer against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Buyer, and continuance its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement, the Sellers may be free from any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Sellers or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Sellers or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Sellers against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Sellers for the Borrower ObligationsObligations (other than payment or performance), or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Sellers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Sellers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Sellers or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Buyer, and the Buyer’s successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Sellers may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, the Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) The Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes the Guarantor’s subrogation rights, rights to proceed against the Sellers or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Sellers, against any Guarantorother guarantor, or against any other person or security.
(ii) The Guarantor is presently informed of the financial condition of the Sellers and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Sellers’ financial condition, the commencement status of other guarantors, if any, and continuance of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, the Guarantor hereby waives its right, if any, to require the Buyer to disclose to the Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstance including, but not limited to, the release of or revocation by any other guarantor.
(iii) The Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, the Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Sellers or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by Guarantor to Buyer, Guarantor hereby waives its right, if any, to require Buyer to disclose to Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
(iv) Guarantor is not required to register as an “investment company” under the Investment Company Act of 1940, as amended from time to time.
(c) Guarantor hereby covenants that it shall not merge, consolidate, amalgamate, liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) or sell all or substantially all of its assets; provided that Guarantor may merge or consolidate with (i) any wholly owned subsidiary of Guarantor, (ii) any other Person if Guarantor is the surviving entity; or (iii) with the prior written consent of the Buyers and the Administrative Agent, so long that, in each case, after giving effect thereto, no Default would exist hereunder.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Administrative Agent on behalf of Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Administrative Agent, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Administrative Agent or any other Person against any Guaranteed Creditor;
Buyers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent on behalf of Buyers against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns, and shall inure to the benefit of the Administrative Agent, the Buyers and their respective successors, and permitted indorsees, transferees and assigns under the Repurchase Agreement, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Administrative Agent and Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Administrative Agent and Buyers any claim or defense based upon, an election of remedies by the Administrative Agent and Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Administrative Agent for such information and will not rely upon the Administrative Agent for any such information. Absent a written request for such information by the Guarantor to the Administrative Agent, Guarantor hereby waives its right, if any, to require the Administrative Agent to disclose to Guarantor any information which the Administrative Agent may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Administrative Agent, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Administrative Agent, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty (Benefit Street Partners Realty Trust, Inc.)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Seller of the Guaranteed Obligations and not of collectibility only and in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of from the following:
Seller without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, any of the Borrower Obligations Guaranteed Obligations, or any other collateral security therefor the Guaranteed Obligations or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
the Buyer, (iii) any defense by the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution Seller to the Guaranteed Obligations or lack of power the ownership of the Borrower Buyer in the Purchased Items or any other Guarantor or subordination of any other Person at any time liable for Lien on the payment of all or part of the Obligations, including any discharge ofPurchased Items, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Guaranteed Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . The Guarantor understands and agrees that this Guaranty shall be construed as a continuing, absolute and unconditional guarantee without regard to waiver, forbearance, compromise, release, settlement, the dissolution, liquidation, reorganization or other change regarding the Seller, or the Seller being the subject of any case or proceeding under any bankruptcy or other law for the protection of debtors or creditors, or any other action or matter that would release a guarantor. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Guaranteed Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations and subject to the purposes hereof “demand” shall include the commencement and continuance provisions of any legal proceedingsSection 9 hereof.
Appears in 1 contract
Sources: Guaranty (PHH Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Bank upon this Guaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Company or any of the Guarantors and the Agent or any Bank shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of Credit Agreement, the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentNotes, any of the Borrower other Credit Documents, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Guaranteed Creditor;
Bank (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Company against the Agent or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBank, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing . This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its rights terms upon each Guarantor and remedies hereunder against any Guarantor, any Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights the successors and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunderassigns thereof, and shall not impair or affect inure to the rights benefit of the Agent and remediesthe Banks, whether expressand their respective successors, implied or available as a matter endorsees, transferees and assigns, until all the Obligations and the obligations of laweach Guarantor under this Guaranty shall have been satisfied by payment in full and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Company may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Sources: Credit Agreement (Haggar Corp)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by the Seller of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyer first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Seller without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Buyer against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Buyer, and continuance its successors, endorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Seller may be free from any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Sellers or the Guarantor, on the one hand, and the Administrative Agent on behalf of Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Sellers or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Administrative Agent, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against the Borrower Administrative Agent or any other Person against any Guaranteed Creditor;
Buyers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of any Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower any Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent or Buyers may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor each Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent on behalf of Buyers against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Administrative Agent, the Buyers and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Sellers may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Administrative Agent and Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Administrative Agent and Buyers any claim or defense based upon, an election of remedies by the Administrative Agent and Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against any GuarantorSeller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against any Seller, against any other guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Sellers and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of each Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Administrative Agent for such information and will not rely upon the Administrative Agent for any such information. Absent a written request for such information by the Guarantor to the Administrative Agent, Guarantor hereby waives its right, if any, to require the Administrative Agent to disclose to Guarantor any information which the Administrative Agent may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Administrative Agent, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Sellers or any other guarantor to the Administrative Agent, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Parent Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment by Seller of the Guaranteed Obligations only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that Buyer first attempt to collect any of the following Guaranteed Obligations from Seller and hereby agrees that its obligations hereunder shall not be discharged is made without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentPrincipal Agreements, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancepayment) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; Buyer or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Parent Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller from the Borrower for the Borrower Guaranteed Obligations, or of such Parent Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Parent Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Parent Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Parent Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Parent Guarantor and the successors and assigns thereof, and shall inure to the benefit of Buyer and its successors, endorsees, transferees and permitted assigns, until all Guaranteed Obligations shall have been satisfied by payment in full and the satisfaction and discharge of the Agreement, notwithstanding that from time to time during the term of the Agreement, Seller may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of the Obligations and not of their collectibility only and is in no way conditioned upon any requirement that Buyer first attempt to collect any of the Obligations from any related Seller, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Repurchase Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person related Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower any related Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor related Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor related Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person related Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Buyer against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of Buyer, and continuance its successors, indorsees, transferees and assigns, until all the Repurchase Obligations and the Obligations of Guarantor under this Guaranty shall have been satisfied by performance and payment in full and the Repurchase Agreement and the other Repurchase Documents shall have been terminated, notwithstanding that from time to time during the term of the Repurchase Agreement, one or more Sellers may be free from any legal proceedingsRepurchase Obligations.
Appears in 1 contract
Sources: Guaranty Agreement (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Lender upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Borrower or Guarantor, on the one hand, and Lender, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Loan Agreement, the other Loan Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower against Lender, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Lender against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Lender, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Loan Agreement Borrower may be free from any Guaranteed Creditor Obligations.
(a) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Lender as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Lender any claim or defense based upon, an election of remedies by Lender which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Borrower or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Borrower, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Borrower and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Borrower’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Lender for such information and will not rely upon Lender for any such information. Absent a written request for such information by Guarantor to Lender, Guarantor hereby waives its right, if any, to require Lender to disclose to Guarantor any information which Lender may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Loan Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Lender, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Borrower or any other guarantor to Lender, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between any Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set‑offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon any Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against any Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off set‑off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of any Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of a Seller from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor a Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto a Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Guaranty Absolute and Unconditional. a. Guarantor hereby guarantees to Buyer the payment in full when due by Seller (awhether at the stated maturity, by acceleration or otherwise) Each of the Obligations without regard to any counterclaim, set-off, deduction or defense of any kind which the Guarantor understands may have or assert, and without abatement, suspension, deferment or diminution on account of any event or condition whatsoever.
b. The Guarantor agrees to promptly pay all out-of-pocket expenses (including the reasonable fees and expenses of counsel) incurred in the enforcement or protection of the rights of Buyer or in the collection of payments hereunder in connection with a failure by Seller to pay the Obligations or in connection with a breach of this Guaranty by the Guarantor.
c. Guarantor agrees that Buyer may at any time and from time to time, either before or after the guarantee contained in this ARTICLE II ismaturity thereof, and shall be construed aswithout notice to or further consent of the Guarantor, a continuingchange the time, completed, absolute and unconditional guarantee manner or place of payment, and each Guarantor hereby waives any defense of a surety or guarantor payment or any other obligor on term of, any obligations arising in connection with Obligation, exchange, release, fail to perfect or in respect surrender any collateral for, or renew or change any term of any of the following Obligations owing to it, and may also enter into a written agreement with Seller or with any other party to the Agreement or person liable on any Obligation, or interested therein, for the extension, renewal, payment, compromise, modification, waiver, discharge or release thereof, in whole or in part, without impairing or affecting this Guaranty. Guarantor hereby agrees that its obligations hereunder shall not be discharged absolute, continuing and unconditional, irrespective of (i) the validity, regularity or otherwise affected enforceability of the Agreement (other than as a result of any the termination of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any Agreement upon payment in full of the Borrower Obligations or any other collateral security therefor or guarantee or right and a written notice of offset with respect thereto at any time or from time termination has been delivered by the Buyer, which written notice shall be promptly delivered by Buyer upon such payment in full, including by means of set-off to time held by any Guaranteed Creditor;
the extent set-off is permitted under the Agreement), (ii) the absence of any defenseaction to enforce the same, set-off any waiver or counterclaim (other than a defense of payment or performance) which may at consent by Buyer concerning any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
provisions thereof, (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack rendering of power of the Borrower any judgment against Seller or any other Guarantor or any other Person at any time liable for action to enforce the payment of all or part of the Obligationssame, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any salethe existence, lease validity, enforceability, perfection or transfer extent of any or all of the assets of the Borrower collateral therefore or any other Guarantorrelease of such collateral, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitutiontime, lawsmanner or place of payment of, rules, regulations or power), structure or ownership of any Obligor or in any other term of, the relationship between Agreement or any transaction or confirmation thereunder, any other amendment or waiver of, or any consent to departure from, any of the Borrower and terms of the Agreement or any Obligor;
transaction or confirmation thereunder, including any increase or decrease in any amount payable thereunder or the rate at which any interest or amount shall accrue thereunder, (vi) the fact that any Collateral release or Lien contemplated amendment or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or createdwaiver of, or shall prove consent to be unenforceable or subordinate to departure from, any other Lienguaranty or support document, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence any law, regulation or order of any attempt to collect the Obligations jurisdiction or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of other similar event affecting the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion term of any Guaranteed CreditorObligation or of Buyer’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; rights with respect thereto or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixviii) any other circumstance that might otherwise constitute a legal or act whatsoeverequitable discharge of a guarantor or a defense of a guarantor (other than the defense of the statute of limitations or as a result of the termination of the Agreement and payment in full of the Obligations, including any action or omission by means of set-off to the type described in Section 2.04 (with or without notice to or knowledge of extent set-off is permitted under the Borrower or such GuarantorAgreement), which constitutesincluding (a) any law, rule or might be construed policy that is now or hereafter promulgated by any governmental authority (including any central bank) or regulatory body that may adversely affect Buyer or Seller’s ability or obligation to constitutemake or receive such payments, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE II, in bankruptcy or in any other instance.
(b) any nationalization, expropriation, war, riot, civil commotion or other similar event, (c) any inability to convert any currency into the currency of payment of such obligation and (d) any inability to transfer funds in the currency of payment of such obligation to the place of payment therefor. For the avoidance of doubt, the parties agree that (i) any amendment or waiver with respect to the Agreement that affects the Obligations under this Guaranty shall modify the Obligations under this guaranty accordingly, and (ii) the Obligations under this Guaranty may be satisfied by means of set-off to the extent set-off is permitted under the Agreement, and that the Guarantor may also exercise any right that Seller may exercise under the Agreement to cure any default in respect of its obligations under the Agreement and may interpose any defense which Seller is or would have been entitled to interpose (other than any defense arising by reason of any disability, lack of capacity, bankruptcy or insolvency of Seller or as otherwise provided for herein); provided, however, that the Guarantor’s obligations hereunder may not be reduced by set-off against any other amounts as may payable by the Buyer to the Guarantor arising under other contracts or obligations existing between the Guarantor and the Buyer (if any).
d. In case of the failure of Seller to punctually pay the Obligations, the Guarantor hereby agrees upon written demand by the Buyer to cause any such payment to be made pursuant to the terms of this Guaranty. When making any demand hereunder against Guarantor, or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Buyer against any Guarantor. For No failure, delay or single or partial exercise by Buyer of its rights or remedies hereunder shall operate as a waiver of such rights or remedies. All rights and remedies hereunder or allowed by law shall be cumulative and exercisable from time to time.
e. This Guaranty, which is a guaranty of payment and not of collection only, shall remain in full force and effect until thirty days after the purposes hereof “demand” date Buyer terminates this Guaranty upon written notice. It is understood and agreed, however, that notwithstanding any such termination this Guaranty shall include continue in full force and effect with respect to all Obligations arising prior to such termination, including for greater certainty, Obligations arising from transactions entered into prior to the commencement and continuance termination of this Guaranty. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored or returned due to bankruptcy or insolvency laws or otherwise. This Guaranty shall continue to be effective if Seller changes its name, merges or consolidates with or into another entity, loses its separate legal proceedingsentity or ceases to exist.
f. This Guaranty shall inure to the benefit of Buyer, and its successors, endorsees, transferees and assigns until all the Obligations and the obligations of Guarantor under this Guaranty shall have been discharged, terminated or satisfied by payment in full, notwithstanding that, from time to time, Seller may be free from any Obligations.
g. Guarantor waives acceptance of this Guaranty, diligence, set-off promptness, presentment, protest, notice of protest, acceleration and dishonor, filing of claims with a court in the event of insolvency or bankruptcy of Seller (and the failure of Buyer to file a claim shall not affect the Guarantor’s obligations hereunder), and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this Guaranty.
Appears in 1 contract
Sources: Guaranty (Angel Oak Mortgage, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyers upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and the Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Series 2016-MSRVF1 Repurchase Agreement, the Series 2020-SPIADVF1 Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyers, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against the Borrower Buyers, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor the Buyers may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyers to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyers against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyers, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Series 2016-MSRVF1 Repurchase Agreement or the Series 2020-SPIADVF1 Repurchase Agreement Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyers any claim or defense based upon, an election of remedies by the Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security. For
(ii) Guarantor is presently informed of the purposes hereof “demand” shall include financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the commencement risk of nonpayment of the Obligations. Guarantor hereby covenants that it will make its own investigation and continuance will continue to keep itself informed of Seller’s financial condition, the status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than the Buyers for such information and will not rely upon the Buyers for any such information. Absent a written request for such information by Guarantor to the Buyers, Guarantor hereby waives its right, if any, to require the Buyers to disclose to Guarantor any information which the Buyers may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Series 2016-MSRVF1 Repurchase Agreement, the Series 2020-SPIADVF1 Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyers, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to the Buyers, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Repurchase Agreement (PennyMac Financial Services, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty LEGAL02/36735576v4
(b) Guarantor hereby expressly waives all set‑offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off set‑off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto Seller may be free from any Guaranteed Creditor against any GuarantorObligations.
(f) Guarantor waives, to the fullest extent permitted by applicable law, all defenses of surety to which it may be entitled by statute or otherwise. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.LEGAL02/36735576v4
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Lender upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Borrower or Guarantor, on the one hand, and Lender, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Loan Agreement, the other Loan Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower against Lender, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Lender against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and their successors and assigns thereof, and shall include inure to the commencement benefit of Lender, and continuance successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Loan Agreement Borrower may be free from any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Seller of the Obligations and not of their collection or collectability only and is in no way conditioned upon any requirement that JPM Chase first attempt to collect any of the obligations from the Seller, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
JPM Chase, (iib) any defense, set-off setoff, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; JPM Chase or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor JPM Chase may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against the Mortgage Assets or any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, JPM Chase to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor JPM Chase against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of JPM Chase, and continuance its successors, indorsees, transferees and assigns, until all of the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by performance and payment in full and the Repurchase Agreement and the other Transaction Documents shall have been terminated, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any legal proceedingsObligations.
Appears in 1 contract
Sources: Guaranty (Walker & Dunlop, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Bank upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between the Borrower or the Guarantor, on the one hand, and the Bank, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives notice of acceptance of this Guaranty, notice of extensions of credit to the Borrower from time to time, notice of default, diligence, presentment, notice of dishonor, protest and demand for payment. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guaranty of payment, and each Guarantor hereby waives any defense of a surety payment without regard to (a) the validity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of Credit Agreement, the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentRevolving Credit Note, any of the Borrower other Loan Documents, any of the Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
or for the benefit of the Bank, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBank, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), the Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor the Guarantors under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise the Bank is pursuing its rights and remedies hereunder against any Guarantorthe Guarantors, any Guaranteed Creditor the Bank may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Bank to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral security, guarantee Guaranty or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or joint and several liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Bank against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsGuarantors.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Documentation Agent, the Administrative Agent or any Lender upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between the Company or any Guarantor, on the one hand, and the Documentation Agent, the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to, and each Guarantor hereby irrevocably waives any defense it may have with respect to, (a) the validity or enforceability of a surety the Credit Agreement, the Notes, or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Documentation Agent, the Administrative Agent or any Guaranteed Creditor;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Company against the Documentation Agent, the Administrative Agent or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise the Documentation Agent is pursuing its rights and remedies hereunder against any the Guarantor, the Documentation Agent, the Administrative Agent or any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Company or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Documentation Agent, the Administrative Agent or any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Company or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Company or any such other Person or of any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Documentation Agent, the Administrative Agent and the Lenders against any the Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Credit Agreement (Ryland Group Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Seller of the Obligations and not of their collection or collectability only and is in no way conditioned upon any requirement that Chase first attempt to collect any of the obligations from the Seller, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Chase, (iib) any defense, set-off setoff, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; Chase or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Chase may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against the Mortgage Assets or any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Chase to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Chase against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of Chase, and continuance its successors, indorsees, transferees and assigns, until all of the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by performance and payment in full and the Repurchase Agreement and the other Transaction Documents shall have been terminated, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment by Seller of the Guaranteed Obligations only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that Buyer first attempt to collect any of the following Obligations from Seller and hereby agrees that its obligations hereunder shall not be discharged is made without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentPrincipal Agreements, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancepayment) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; Buyer or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Guaranteed Obligations, or of such Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and permitted assigns thereof, and shall inure to the benefit of Buyer and its successors, endorsees, transferees and permitted assigns, until all Guaranteed Obligations shall have been satisfied by payment in full and the satisfaction and discharge of the Agreement, notwithstanding that from time to time during the term of the Agreement, Seller may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor Buyer against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and their successors and assigns thereof, and shall include inure to the commencement benefit of Buyer, and continuance successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement Seller may be free from any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands Parent waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Lender upon this ARTICLE II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between Parent and the Borrower, on the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Parent waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Parent and the Borrower with respect to the Obligations. This Article XI shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and not of collectibility, and each Guarantor hereby waives any defense not a contract of a surety surety, without regard to (a) the validity, regularity or guarantor or enforceability of this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Credit Document, any of the Borrower Obligations or any other collateral Collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Guaranteed Creditor;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person guarantor against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Administrative Agent or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Parent or the Borrower or such Guarantor), which any other guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other guarantor for the Borrower Obligations, or of such Guarantor Parent under the guarantee contained in this ARTICLE IIArticle XI, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against Parent, the Administrative Agent and any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral Collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral Collateral or other security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral Collateral or other security, guarantee or right of offset, shall not relieve any Guarantor Parent of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Guaranteed Creditor Lender against Parent. This Article XI shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Parent and its successors and assigns, and shall inure to the benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Parent under this Agreement shall have been satisfied by payment in full in cash, all Letters of Credit shall have expired or terminated, and the Commitments shall have been terminated (notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Guarantor. For Obligations), or until the purposes hereof “demand” Parent Release Date, at which time the obligations of Parent under this Article XI (other than the obligations contained in Section 11.6) shall include the commencement and continuance of any legal proceedingsautomatically terminate.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Administrative Agent on behalf of Buyers, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Administrative Agent, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Administrative Agent or any other Person against any Guaranteed Creditor;
Buyers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Administrative Agent may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent on behalf of Buyers against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Administrative Agent, the Buyers and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Administrative Agent and Buyers as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Administrative Agent and Buyers any claim or defense based upon, an election of remedies by the Administrative Agent and Buyers which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Administrative Agent for such information and will not rely upon the Administrative Agent for any such information. Absent a written request for such information by the Guarantor to the Administrative Agent, Guarantor hereby waives its right, if any, to require the Administrative Agent to disclose to Guarantor any information which the Administrative Agent may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Administrative Agent, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Administrative Agent, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantors, on the one hand, and Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such any Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any either Guarantor, any Guaranteed Creditor Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against either Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantors and their successors and assigns thereof, and shall inure to the benefit of Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantors under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement, Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, each Guarantor hereby agrees, acknowledges, and represents and warrants to Buyer as follows:
(i) Such Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Buyer any claim or defense based upon, an election of remedies by Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes such Guarantor’s subrogation rights, rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantors to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Such Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Such Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Buyer for such information and will not rely upon Buyer for any such information. Absent a written request for such information by such Guarantor to Buyer, such Guarantor hereby waives its right, if any, to require Buyer to disclose to such Guarantor any information which Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Such Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer, such Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Seller or any other guarantor to Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and hereby agrees that its Obligations under this Guaranty constitute a guarantee of payment when due and not of collection. Guarantor waives to the guarantee contained in extent permitted by law any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between the Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby waives to the extent permitted by applicable law promptness, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations.
(c) This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Program Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other 3 Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations under this Guaranty shall have been satisfied by payment in full and the Program Documents shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Guaranteed Creditor against any Guarantor. For Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Sources: Guaranty (Angel Oak Mortgage, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guarantee Obligation of paymentthe full and punctual payment and performance of the Guaranty Obligations (and not of their collectibility only), and each Guarantor hereby waives is in no way conditioned upon any defense requirement that Buyer first attempt to collect any of a surety the Guaranty Obligations from Seller, without regard to (a) the validity, regularity or guarantor enforceability of the Master Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed Repurchase Document, any of the Borrower Guaranty Obligations or any other collateral security therefor or guarantee Guarantee Obligation or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Buyer, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge Knowledge of the Borrower Seller or such Guarantor), Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such any Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any a demand hereunder or otherwise pursuing its rights and remedies hereunder against any GuarantorGuarantors, any Guaranteed Creditor Buyer may, but shall be under no obligation to, join or make a similar demand on Seller or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor Buyer to make any such demand, to demand or pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor Guarantors of any obligation obligations or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Guaranteed Creditor Buyer against any GuarantorGuarantors. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of Buyer, and continuance its successors, indorsees, transferees and assigns, until all the Repurchase Obligations and the Guaranty Obligations of any legal proceedingsGuarantors under this Guaranty shall have been satisfied by performance and payment in full and the Expiration Date shall have occurred.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by Borrower of the Obligations and not of their collectibility only and is in no way conditioned upon any defense requirement that Lender first attempt to collect any of a surety or guarantor the Obligations from the Borrower or any other obligor on any obligations arising in connection with Guarantor, without regard to (a) the validity, regularity or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged Loan Agreement or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Guaranteed other Loan Document, any of the Borrower Obligations or the obligations of each Guarantor hereunder or any other collateral security therefor or guarantee thereof or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Lender, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Borrower against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower Lender or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such any Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of Borrower from the Borrower for the Borrower Obligations, or of such any Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against the Guaranty Collateral or any other collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of the Lender against Guarantors. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantors and the successors and assigns thereof, and shall inure to the benefit of Lender, and each of its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantors under this Guaranty shall have been satisfied by performance and payment in full and the Loan Agreement and the other Loan Documents shall have been terminated, notwithstanding that from time to time during the term of the Loan Agreement a Borrower may be free from any Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Sources: Guaranty and Security Agreement (General Motors Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Lender upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Borrower or Guarantor, on the one hand, and Lender, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Loan Agreement, the other Loan Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower against Lender, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Creditor Lender may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Lender against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and their successors and assigns thereof, and shall inure to the benefit of Lender, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Loan Agreement Borrower may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to Lender as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against Lender any claim or defense based upon, an election of remedies by Lender which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Borrower or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Borrower, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Borrower and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Borrower’s financial condition, the purposes hereof “demand” shall include status of other guarantors, if any, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than Lender for such information and will not rely upon Lender for any such information. Absent a written request for such information by Guarantor to Lender, Guarantor hereby waives its right, if any, to require Lender to disclose to Guarantor any information which Lender may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Loan Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Lender, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Borrower or any other guarantor to Lender, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this ARTICLE II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance by the Sellers of the Obligations and not of their collectibility only, and each Guarantor hereby waives is in no way conditioned upon any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of requirement that the Buyers first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged from the Sellers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of any Guaranteed DocumentMaster Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyers (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by a Seller against the Borrower or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyers, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of a Seller from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyers may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor a Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyers to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor a Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Creditor the Buyers against any the Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Buyers, and continuance their successors, endorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Master Repurchase Agreement shall be terminated, notwithstanding that from time to time during the term of the Master Repurchase Agreement the Sellers may be free from any legal proceedingsObligations.
Appears in 1 contract
Sources: Guaranty (Novastar Financial Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Seller or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by it or Seller against the Borrower Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) To the extent permitted by law, Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against Seller, against any Guarantorother guarantor, or against any other person or security.
(i) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include financial condition of the commencement Seller, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(ii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller Parties or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller Parties or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller Parties against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller Parties or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller Parties for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller Parties or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller Parties or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller Parties or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller Parties may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller Parties or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller Parties, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller Parties and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller Parties’ financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller Parties or any other guarantor to the Buyer, now or at any time and from time to time in the future.
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Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this ARTICLE II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or Guarantors, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or Guarantors with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Guaranteed Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Creditor;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Guaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Obligor or in the relationship between the Borrower and any Obligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Obligor;
(A) any Guaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Guaranteed Creditors or any of them for any reason; or (G) failure by any Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such any Guarantor under the guarantee contained in this ARTICLE IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any either Guarantor, any Guaranteed Creditor the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Creditor to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against either Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantors and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantors under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Guaranteed Creditor Obligations.
(b) Without limiting the generality of the foregoing, each Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) Such Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes such Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of Guarantors to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Such Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For Such Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by such Guarantor to the Buyer, such Guarantor hereby waives its right, if any, to require the Buyer to disclose to such Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Such Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, such Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
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