Guaranty of Performance. Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoing: (a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; and (b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (or any terms of) the guaranty of payment under Section 1.
Appears in 2 contracts
Sources: Loan Agreement (Acadia Realty Trust), Loan Agreement (Acadia Realty Trust)
Guaranty of Performance. Subject to the limitations set forth below, the Guarantor additionally does hereby unconditionally guarantee the payment and irrevocably guarantees to Administrative Agent and Lenders the timely performance of all other covenants and obligations of Borrower Newco under this Agreement including, but not limited to, the obligation to fund the Per Share Merger Consideration pursuant to Section 2.01 hereof and to pay the termination fee contemplated by Section 7.02 hereof, up to a total of $34.65 million (the "Guaranty"). The obligation of Guarantor under the Guaranty is primary, absolute and unconditional, is a continuing guaranty, and shall remain in force at all times hereafter, until all of Newco's obligations hereunder have been satisfied in full. Guarantor hereby waives notice, presentment, demand, protest and notice of dishonor of any of the liabilities or obligations guaranteed hereby, and hereby waives any failure to promptly commence suit against any party or to give any notice to or make any claim or demand upon Newco. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment, or any part thereof, by Newco is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of Newco, or otherwise, all as though such payment had not been made. Guarantor agrees that sufficiently in advance of Closing it shall make such calls for capital contributions from its general and limited partners, and take such other actions necessary, to ensure that Guarantor has sufficient cash funds at Closing to fully fund its obligations under this Section 5.16. This Guaranty shall inure to the benefit of the Company and each shareholder entitled to receive the Per Share Merger Consideration on a pro rata basis. There shall be no duty or obligation upon the Company or its shareholders (i) to proceed against Newco, (ii) to initiate any proceeding or exhaust any remedy against Newco, or (iii) to give any notice to Newco or Guarantor, whatsoever, before bringing suit, or instituting proceedings of any kind against Newco or Guarantor. Until all of the Loan Documents, including, without limiting the generality of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; and
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of such obligations of Borrower are not complied with, Newco under this Agreement have been satisfied in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantorfull, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and shall have no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor subrogation and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest enforce any such expenditures remedy which Company or its shareholders now has or may hereafter have against Newco and any benefit of, and any right to participate in, any security now or hereafter held by Administrative Agent and/or LendersCompany or its shareholders. The amount of All rights and remedies under this Guaranty are cumulative and those granted hereunder are in addition to any rights and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from remedies available under law. From the date made hereof until repaid to Administrative Agentthe Effective Time, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, Guarantor shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or not take any such action. The action that would reasonably be expected to materially, adversely affect its ability to perform its obligations and liability of Guarantor under this Section 2 shall not 5.16. Notwithstanding the foregoing provisions of this Section 5.16, Guarantor's obligation is limited to $1.65 million and will be limited or restricted by deemed satisfied in full if Newco pays the existence of (or any terms of) the guaranty of payment termination fee under Section 17.02 or if the Merger is consummated and the Merger Consideration is paid pursuant Section 2.02.
Appears in 2 contracts
Sources: Merger Agreement (Capricorn Investors Iii L P), Merger Agreement (Tcby Enterprises Inc)
Guaranty of Performance. THE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE “MERCHANT AGREEMENT”, INCLUDING THE “TERMS AND CONDITIONS”, ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS SECURITY AGREEMENT AND GUARANTY. CAPITALIZED TERMS NOT DEFINED IN THIS SECURITY AGREEMENT AND GUARANTY, SHALL HAVE THE MEANING SET FORTH IN THE MERCHANT AGREEMENT, INCLUDING THE TERMS AND CONDITIONS. RCNY As an additional inducement for RCNY to enter into this Agreement, the undersigned Guarantor(s) hereby provides RCNY with this Guaranty. Guarantor(s) will not be personally liable for any amount due under this Agreement unless Merchant commits an Event of Default pursuant to Paragraph 3.1 of this Agreement. Each Guarantor additionally hereby unconditionally shall be jointly and irrevocably guarantees severally liable for all amounts owed to Administrative Agent RCNY in the Event of Default. Guarantor(s) guarantee Merchant’s good faith, truthfulness and Lenders the timely performance of all other obligations of Borrower under all of the Loan Documentsrepresentations, includingwarranties, without limiting the generality of the foregoing:
(a) that the tenant improvement work required to covenants made by Merchant in this Agreement as each may be performed by the landlord under any and all leasesrenewed, both existing and futureamended, of space in the Improvements extended or otherwise modified (the “TI Work”) will be constructed in accordance with such leases and Guaranteed Obligations”).Guarantor’s obligations are due at the Loan Agreement; and
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery time of any permitsbreach by Merchant of any representation, certificates warranty, or governmental approvals required covenant made by law Merchant in the Agreement. Guarantor Waivers. In the event of a breach of the above, RCNY may seek recovery from Guarantors for all of RCNY’s losses and damages by enforcement of RCNY’s rights under this Agreement without first seeking to obtain payment from Merchant, any other guarantor, or the applicable lease, on any Collateral or before the date required in such leaseAdditional Collateral RCNY may hold pursuant to this Agreement or any other guaranty. If RCNY does not have to notify Guarantor of any of such the following events and Guarantor will not be released from its obligations of Borrower are under this Agreement if it is not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to notified of: (i) assume all responsibility for Merchant’s failure to pay timely any amount required under the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan DocumentsMerchant Agreement; (ii) pay all bills any adverse change in connection with Merchant’s financial condition or business; (iii) any sale or other disposition of any collateral securing the construction Guaranteed Obligations or any other guaranty of the TI WorkGuaranteed Obligations; (iv) RCNY’s acceptance of this Agreement; and (v) any renewal, extension or other modification of the Merchant Agreement or Merchant’s other obligations to RCNY. In addition, RCNY may take any of the following actions without releasing Guarantor from any of its obligations under this Agreement: (i) renew, extend or otherwise modify the Merchant Agreement or Merchant’s other obligations to RCNY; (ii) release Merchant from its obligations to RCNY; (iii) indemnify sell, release, impair, waive or otherwise fail to realize upon any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations; and hold Administrative Agent (iv) foreclose on any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations in a manner that impairs or precludes the right of Guarantor to obtain reimbursement for payment under this Agreement. Until the Purchased Amount and Lenders harmless Merchant’s other obligations to RCNY under the Merchant Agreement and this Agreement are paid in full, Guarantor shall not seek reimbursement from Merchant or any other guarantor for any amounts paid by it under this Agreement. Guarantor permanently waives and all lossshall not seek to exercise any of the following rights that it may have against Merchant, costany other guarantor, liability or expense that Administrative Agent and Lenders may suffer any collateral provided by reason of Merchant or any such non-compliance. So long as all of such obligations are being other guarantor, for any amounts paid by it, or acts performed by Borrower it, under this Agreement: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or Guarantor and no Default exists, Lenders will make (v) contribution. In the Loan proceeds, if any, available under and event that RCNY must return any amount paid by Merchant or any other guarantor of the Guaranteed Obligations because that person has become subject to a proceeding under the terms United States Bankruptcy Code or any similar law, Guarantor’s obligations under this Agreement shall include that amount. Guarantor Acknowledgement. Guarantor acknowledges that: (i) He/She is bound by the Class Action Waiver provision in the Merchant Agreement Terms and Conditions; (ii) He/She understands the seriousness of the Loan provisions of this Agreement; (ii) He/She has had a full opportunity to consult with counsel of his/her choice; and (iv) He/She has consulted with counsel of its choice or has decided not to avail himself/herself of that opportunity. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (or any terms of) the guaranty of payment under Section 1.By: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ SSN# Driver’s License Number By: SSN# Driver’s License Number By: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ SSN# Driver’s License Number By: SSN# Driver’s License Number
Appears in 1 contract
Sources: Purchase and Sale of Future Receivables (PARTS iD, Inc.)
Guaranty of Performance. [NOTE: create separate document in VA and other confessed judgment states for performance guaranty] Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent Agent, for the benefit of itself and Lenders the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoingSecured Parties:
(ai) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases the Loan Agreement and the Loan Agreement; andPlans and Specifications at a total project cost not to exceed that set forth in the Budget;
(bii) that the TI Work Improvements will be completed, lien free, completed and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable leaseLoan Agreement, on or before the date Completion Date required in the Loan Agreement;
(iii) that it will ensure the performance, completion and payment of the construction of the Improvements (the “Construction”) and the payment of all costs of said Construction (including any and all cost overruns) and all other costs associated with the Improvements (including, without limitation, the costs of any architects’ and engineers’ fees), including any sums expended in excess of the amount of indebtedness incurred by Borrower under the Loan Agreement or with respect to the Loan, whether or not the Construction is actually completed;
(iv) that if Administrative Agent exercises its right under the Loan Documents to take possession of the Property and complete the Construction, it will reimburse Administrative Agent for all costs and expenses incurred by Administrative Agent in excess of the applicable approved budget line items therefor (if any) in so taking possession of the Property and completing the Construction pursuant to the Plans and Specifications;
(v) that if any mechanics’ or materialmen’s liens should be filed, or should attach, with respect to the Property by reason of the Construction, it will cause the immediate removal of such leaseliens, or post security against the consequences of their possible foreclosure and procure an endorsement(s) to Administrative Agent’s Title Insurance Policy insuring Administrative Agent, for the benefit of itself and the Secured Parties, against the consequences of the foreclosure or enforcement of such lien(s);
(vi) that if any chattel mortgages, conditional vendor’s liens or any liens, encumbrances or security interests whatsoever should be filed, or should attach, with respect to the personal property, fixtures, attachments and equipment delivered upon the Property and owned by Borrower, or attached to or used in connection with the Construction of the Improvements, it will cause the immediate removal of such lien(s) or post security against the consequences of their possible foreclosure and procure an endorsement(s) to Administrative Agent’s Title Insurance Policy insuring Administrative Agent, for the benefit of itself and the Secured Parties, against the consequences of the foreclosure or enforcement of such lien(s);
(vii) that it will cause the payment of the premiums for all policies of insurance required to be furnished by Borrower pursuant to the Loan Agreement during the Construction if such premiums are not paid by Borrower; and
(viii) the due and punctual performance and observance by Borrower of all other terms, covenants, and conditions of the Loan Agreement or changes in the terms, covenants, or conditions thereof now or hereafter made, but only to the extent such terms, covenants and conditions pertain to the lien free construction of the Improvements in accordance with the terms and conditions set forth in the Loan Agreement. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (iA) assume all responsibility for the completion of the TI Work Improvements and, at Guarantor’s 's own cost and expense, cause the TI Work Improvements to be fully completed in accordance with the leases of the Property Plans and Specifications and the Loan Documents; (iiB) pay all bills in connection with the construction Construction of the TI WorkImprovements; and (iiiC) indemnify and hold Administrative Agent and each of Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders or any Lender may suffer by any reason of any such non-compliance. So long as as: (X) all of such obligations are being performed by Borrower or Guarantor, (Y) Guarantor shall timely cure any Default under the Loan Documents susceptible of being cured by Guarantor, and (Z) no Default existsdefault exists hereunder, Lenders Administrative Agent will make the Loan proceeds, insurance proceeds, if any, condemnation proceeds, if any, and surety bond proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a Defaultdefault hereunder, and without limiting the Administrative Agent’s or any Lender’s rights and remedies of Administrative Agent and Lendersremedies, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent Agent, on behalf of the Lenders, may, at its option, without notice to Guarantor option or anyone elseat the direction of the Required Lenders, complete the TI Work Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent or any Lender against Borrower or Guarantor Guarantor, with such changes or modifications in the Plans and Specifications that Administrative Agent deems necessary, and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI WorkImprovements, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lendersnecessary expenditures. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note Loan Agreement and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent does not have nor and shall they ever never have any obligation to complete the TI Work Improvements or take any such action. The obligations and liability of Guarantor under this Section 2 Furthermore, Administrative Agent shall not be limited have any obligation to protect or restricted by insure any collateral for the existence of (or Loan, nor shall Administrative Agent have any terms of) obligation to perfect its security interest in any collateral for the guaranty of payment under Section 1Loan.
Appears in 1 contract
Sources: Guaranty Agreement
Guaranty of Performance. Subject to Section 11.11, each Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent for the ratable of Agent and Lenders Lenders, and their respective successors, endorsees, transferees and assigns, the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoing, that:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed upon the Land in accordance with such leases this Agreement and the Loan AgreementPlans; and
(b) that the TI Work Improvements will be completed, lien free, completed and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable leasethis Agreement, on or before the date required in such leasethis Agreement. If any of such obligations of Borrower In the event the foregoing conditions are not complied with, with in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees Guarantors agree to (i) assume all responsibility for the completion of the TI Work Improvements and, at Guarantor’s Guarantors' own cost and expense, to cause the TI Work Improvements to be fully completed in accordance with the leases of the Property Plans and the Loan Documentsin accordance with this Agreement; (ii) pay all bills in connection with the construction of the TI WorkImprovements; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and or Lenders may suffer by reason of any such non-complianceevent excepting with respect to willful misconduct or gross negligence of Agent or Lenders. So Agent shall accept performance by Guarantors of Borrower's obligations under the Loan Documents, and so long as all of such said obligations are being performed by Borrower or Guarantor and no Default existsGuarantors, Lenders Agent will make the Construction Loan proceeds, if any, proceeds available under and subject to the terms of the Loan this Agreement. If If, after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or GuarantorGuarantors, Administrative Agent may, at its option, without and on behalf of Lenders, after first having given notice to Guarantor or anyone elseGuarantors at the address set forth below in the manner prescribed herein for giving notice, complete the TI Work Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent or Lenders against Borrower or Guarantor Guarantors, with such changes or modifications in the Plans which Agent reasonably deems necessary and expend such sums as Administrative Agent, in its sole and absolute discretion, reasonably deems necessary or advisable and proper in order to so complete the TI WorkImprovements, and Guarantor Guarantors hereby waives waive any right to contest any such expenditures by Administrative Agent and/or Lendersreasonably necessary expenditures. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent Lenders upon demanddemand and accrue interest at a rate two percent (2%) per annum above the rate then applicable under the Construction Loan Note (or that would be applicable under the Construction Loan Note if it were still outstanding). Neither Borrower nor any Guarantor shall be liable to Lenders nor Administrative Agent have nor shall they ever have any obligation for the cost of completing the Improvements to complete the TI Work or take any such actionextent the aggregate cost of completing the Improvements exceeds the Construction Loan Commitment. The obligations and liability of Guarantor Guarantors under this Section 2 11.2 shall not be limited or restricted by the existence of (or any terms oflimitation on) the guaranty of payment under Section 111.1. (All Obligations of Borrower to Agent or any Lender, including all of the Obligations specified in Section 11.1 or this Section 11.2, shall be hereinafter collectively referred to as the "Guaranteed Obligations."
Appears in 1 contract
Sources: Loan Agreement (Medcath Inc)
Guaranty of Performance. Guarantor additionally hereby jointly and severally with all other guarantors of the Loan, unconditionally and irrevocably guarantees to Administrative Agent and for the benefit of the Lenders the timely performance of all other obligations of Borrower under all of the Loan DocumentsDocuments other than the Principal Indebtedness and the Other Monetary Obligations, including, without limiting the generality of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; andAgreement and with the Plans;
(b) that the TI Work Improvements will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates certificates, or governmental approvals required by law or the applicable leaseLoan Agreement, on or before the date Completion Date required in such lease. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement; and
(c) that Borrower will duly and punctually perform and observe all other terms, covenants, and conditions of the Note, the Deed of Trust, the Loan Agreement, the Environmental Agreement or any other Loan Document, or any Swap Transaction whether according to the present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time or to any change or changes in the terms, covenants, or conditions thereof now or hereafter made or granted. If after a Default (as such term is defined in the occurrence of a Default, Loan Agreement) has occurred and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantorcontinuing, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor Guarantor, with such changes or modifications in the Plans as Administrative Agent deems necessary and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI WorkImprovements, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or LendersAgent. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note Loan Agreement and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent does not have nor and shall they ever never have any obligation to complete the TI Work Improvements or take any such other action. The obligations and liability of Guarantor under this Section 2 3 shall not be limited limited, restricted or restricted reduced by the existence terms of (or any terms of) the guaranty of payment under Section 1guaranties set forth in Sections 1 and 2.
Appears in 1 contract
Sources: Guaranty Agreement (MGM Mirage)
Guaranty of Performance. (a) Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders Lender the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoing:
(a) , that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases the License Agreement and with the Loan Plans, as the same may have been modified from time to time in accordance with the License Agreement; and, free and clear from all defects and liens and in compliance with applicable law.
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders Lender to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work Improvements and, at Guarantor’s 's own cost and expense, cause the TI Work Improvements to be fully completed in accordance with the leases of the Property and Plans, the Loan DocumentsDocuments and applicable law; (ii) pay all bills in connection with the construction of the TI WorkImprovements, including without limitation, all permitting fees, licensing fees, amounts payable under the general construction contract and all subcontracts, and amounts payable to all architects, engineers and other consultants engaged in connection with the construction of the Improvements; (iii) cure any Default (as hereinafter defined) or Event of Default under any term, covenant or condition of the Mortgage or other Loan Documents, including if applicable, causing any liens and claims to be removed and thereafter keeping the Improvements free and clear from all liens and claims that may be filed or made for performing work or labor thereon or furnishing materials therefor or both; and (iiiiv) indemnify and hold Administrative Agent and Lenders Lender harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders Lender may suffer by any reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Event of Default exists, Lenders Lender will make the Loan proceeds, if any, proceeds available under and subject to the terms of the Loan AgreementMortgage. If after the occurrence of a Default, and without limiting the Lender's rights and remedies of Administrative Agent and Lendersremedies, Administrative AgentLender, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent mayLender, at its option, without upon at least ten (10) days prior notice to Guarantor or anyone elseGuarantor, may complete the TI Work Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent Lender against Borrower or Guarantor Guarantor, with such changes or modifications in the Plans that Lender deems necessary and expend such sums as Administrative AgentLender, in its sole and absolute reasonable discretion, deems necessary or advisable to complete the TI WorkImprovements, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lendersnecessary expenditures. The amount of any and all expenditures made by Administrative Agent Lender for the foregoing purposes shall bear interest from the date made until repaid to Administrative AgentLender, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon Lender within ten (10) days of written demand. Neither Lenders nor Administrative Agent Lender does not have nor and shall they ever never have any obligation to complete the TI Work Improvements or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (or any terms of) the guaranty of payment under Section 1Payment Guaranty described above.
Appears in 1 contract
Sources: Guaranty Agreement (Essex Hospitality Associates Iv Lp)
Guaranty of Performance. THE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE “MERCHANT AGREEMENT”, INCLUDING THE “TERMS AND CONDITIONS”, ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS SECURITY AGREEMENT AND GUARANTY. CAPITALIZED TERMS NOT DEFINED IN THIS SECURITY AGREEMENT AND GUARANTY, SHALL HAVE THE MEANING SET FORTH IN THE MERCHANT AGREEMENT, INCLUDING THE TERMS AND CONDITIONS. RCNY As an additional inducement for RCNY to enter into this Agreement, the undersigned Guarantor(s) hereby provides RCNY with this Guaranty. Guarantor(s) will not be personally liable for any amount due under this Agreement unless Merchant commits an Event of Default pursuant to Paragraph 3.1 of this Agreement. Each Guarantor additionally hereby unconditionally shall be jointly and irrevocably guarantees severally liable for all amounts owed to Administrative Agent RCNY in the Event of Default. Guarantor(s) guarantee Merchant’s good faith, truthfulness and Lenders the timely performance of all other obligations of Borrower under all of the Loan Documentsrepresentations, includingwarranties, without limiting the generality of the foregoing:
(a) that the tenant improvement work required to covenants made by Merchant in this Agreement as each may be performed by the landlord under any and all leasesrenewed, both existing and futureamended, of space in the Improvements extended or otherwise modified (the “TI Work”) will be constructed in accordance with such leases and Guaranteed Obligations”).Guarantor’s obligations are due at the Loan Agreement; and
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery time of any permitsbreach by Merchant of any representation, certificates warranty, or governmental approvals required covenant made by law Merchant in the Agreement. Guarantor Waivers. In the event of a breach of the above, RCNY may seek recovery from Guarantors for all of RCNY’s losses and damages by enforcement of RCNY’s rights under this Agreement without first seeking to obtain payment from Merchant, any other guarantor, or the applicable lease, on any Collateral or before the date required in such leaseAdditional Collateral RCNY may hold pursuant to this Agreement or any other guaranty. If RCNY does not have to notify Guarantor of any of such the following events and Guarantor will not be released from its obligations of Borrower are under this Agreement if it is not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to notified of: (i) assume all responsibility for Merchant’s failure to pay timely any amount required under the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan DocumentsMerchant Agreement; (ii) pay all bills any adverse change in connection with Merchant’s financial condition or business; (iii) any sale or other disposition of any collateral securing the construction Guaranteed Obligations or any other guaranty of the TI WorkGuaranteed Obligations; (iv) RCNY’s acceptance of this Agreement; and (v) any renewal, extension or other modification of the Merchant Agreement or Merchant’s other obligations to RCNY. In addition, RCNY may take any of the following actions without releasing Guarantor from any of its obligations under this Agreement: (i) renew, extend or otherwise modify the Merchant Agreement or Merchant’s other obligations to RCNY; (ii) release Merchant from its obligations to RCNY; (iii) indemnify sell, release, impair, waive or otherwise fail to realize upon any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations; and hold Administrative Agent (iv) foreclose on any collateral securing the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations in a manner that impairs or precludes the right of Guarantor to obtain reimbursement for payment under this Agreement. Until the Purchased Amount and Lenders harmless Merchant’s other obligations to RCNY under the Merchant Agreement and this Agreement are paid in full, Guarantor shall not seek reimbursement from Merchant or any other guarantor for any amounts paid by it under this Agreement. Guarantor permanently waives and all lossshall not seek to exercise any of the following rights that it may have against Merchant, costany other guarantor, liability or expense that Administrative Agent and Lenders may suffer any collateral provided by reason of Merchant or any such non-compliance. So long as all of such obligations are being other guarantor, for any amounts paid by it, or acts performed by Borrower it, under this Agreement: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or Guarantor and no Default exists, Lenders will make (v) contribution. In the Loan proceeds, if any, available under and event that RCNY must return any amount paid by Merchant or any other guarantor of the Guaranteed Obligations because that person has become subject to a proceeding under the terms United States Bankruptcy Code or any similar law, Guarantor’s obligations under this Agreement shall include that amount. Guarantor Acknowledgement. Guarantor acknowledges that: (i) He/She is bound by the Class Action Waiver provision in the Merchant Agreement Terms and Conditions; (ii) He/She understands the seriousness of the Loan provisions of this Agreement; (ii) He/She has had a full opportunity to consult with counsel of his/her choice; and (iv) He/She has consulted with counsel of its choice or has decided not to avail himself/herself of that opportunity. If after the occurrence of a Default, FOR THE MERCHANT (#1) By: (Print Name and without limiting the rights Title) (Signature) SSN# Driver’s License Number FOR THE MERCHANT (#2) By: (Print Name and remedies of Administrative Agent Title) (Signature) SSN# Driver’s License Number FOR THE GUARANTOR(S) (#1) By: (Print Name and Lenders, Administrative Agent, in its sole Title) (Signature) SSN# Driver’s License Number FOR THE GUARANTOR(S) (#2) By: (Print Name and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of Title) (or any terms ofSignature) the guaranty of payment under Section 1.SSN# Driver’s License Number
Appears in 1 contract
Sources: Purchase and Sale of Future Receivables (PARTS iD, Inc.)
Guaranty of Performance. Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “"TI Work”") will be constructed in accordance with such leases and the Loan Agreement; and
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s 's own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliancenon‑compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (or any terms of) the guaranty of payment under Section 1.
Appears in 1 contract
Sources: Loan Agreement (Acadia Realty Trust)
Guaranty of Performance. Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders Bank the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoing, that:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed upon the Land in accordance with such leases and the Loan AgreementAgreement and with the Plans; and
(b) that the TI Work Improvements will be completed, lien free, completed and ready for occupancy, including delivery of any permitscertificates, certificates or governmental approvals licenses, and permits required by law or the applicable leaseLoan Agreement, on or before within the date time periods required in such leasethe Loan Agreement. If any of such In the event the foregoing obligations of Borrower are not complied with, timely performed in any respect whatsoever, and Guarantor, without the necessity of any notice from Administrative Agent or Lenders Bank to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work Improvements and, at Guarantor’s 's own cost and expense, to cause the TI Work Improvements to be fully completed in accordance with the leases of the Property Plans and in accordance with the Loan DocumentsAgreement; (ii) pay all bills bills, costs, and expenses in connection with the construction and completion of the TI WorkImprovements; and (iii) indemnify and hold Administrative Agent and Lenders Bank harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders Bank may suffer by reason of any such non-complianceacts or omissions of Borrower. So long as all of such obligations are being performed by Borrower or Guarantor and no Default existsIf, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a DefaultDefault by Borrower, and without limiting Guarantor has not caused construction to progress as required by the rights and remedies of Administrative Agent and LendersLoan Agreement, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent Bank may, at its option, without after first having given notice to the Guarantor or anyone elseat the address set forth below in the manner prescribed herein for giving notice, complete the TI Work Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent Bank against Borrower or Guarantor Guarantor, with such changes or modifications in the Plans which Bank reasonably deems necessary and expend such sums as Administrative AgentBank, in its sole and absolute discretion, reasonably deems necessary or advisable and proper in order to so complete the TI WorkImprovements, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lendersexpenditures. The amount of any and all expenditures made by Administrative Agent Bank for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent Bank upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete demand and accrue interest at the TI Work or take any such action. The obligations and liability of Guarantor rate then applicable under this Section 2 shall not be limited or restricted by the existence of Note (or any terms of) that would be applicable under the guaranty of payment under Section 1Note if it were still outstanding).
Appears in 1 contract
Guaranty of Performance. Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoing:
(a) that IR hereby unconditionally guarantees (the tenant improvement work "IR GUARANTY") to the Buyers the prompt and complete performance of any and all Liabilities required to be performed by the landlord under any and all leasesapplicable other Seller or other applicable IR Affiliate pursuant to this Agreement or the Transaction Agreements, both existing and future, of space including the indemnification obligations in the Improvements ARTICLE IX (the “TI Work”) will be constructed "SELLER GUARANTEED OBLIGATIONS"). This IR Guaranty is an absolute, present and continuing guaranty of performance, and shall remain in accordance with such leases full force and effect without regard to, and the Loan AgreementLiabilities of IR hereunder shall not be impaired by, any of the following: (a) any amendment or modification of or addition or supplement to any of the Seller Guaranteed Obligations or any agreement executed in connection therewith, (b) any default by any Seller (other than IR), Subsidiary or other applicable IR Affiliate under, or any invalidity or unenforceability in any respect of, or any irregularity or other defect in any of, the Seller Guaranteed Obligations, (c) any exercise or nonexercise of any right, remedy, power or privilege in respect of this IR Guaranty or any of the Seller Guaranteed Obligations, (d) any transfer of the assets of a Seller or other applicable IR Affiliate to, or any consolidation or merger of a Seller or other applicable IR Affiliate with or into, any other Person; andor (e) any bankruptcy, insolvency, reorganization or similar proceeding involving or affecting a Seller or other applicable IR Affiliate.
(b) that Timken hereby unconditionally guarantees (the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (i"BUYER GUARANTY") assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of Sellers the Loan Agreement. If after the occurrence of a Default, prompt and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount performance of any and all expenditures made Liabilities required to be performed by Administrative Agent for the foregoing purposes Buyers pursuant to this Agreement or the Transaction Agreements, including the indemnification obligations in ARTICLE IX (the "BUYER GUARANTEED Obligations"). This Buyer Guaranty is an absolute, present and continuing guaranty of performance, and shall bear interest from remain in full force and effect without regard to, and the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or take any such action. The obligations and liability Liabilities of Guarantor under this Section 2 Buyers hereunder shall not be limited impaired by, any of the following: (a) any amendment or restricted by modification of or addition or supplement to any of the existence of (Guaranteed Obligations or any terms agreement executed in connection therewith, (b) any default by any Buyer under, or any invalidity or unenforceability in any respect of, or any irregularity or other defect in any of, the Buyer Guaranteed Obligations, (c) any exercise or nonexercise of any right, remedy, power or privilege in respect of this Buyer Guaranty or any of the guaranty Buyer Guaranteed Obligations, (d) any transfer of payment under Section 1the assets of any Buyer or any of its Affiliates to, or any consolidation or merger of any Buyer or any of its Affiliates with or into, any other Person; or (e) any bankruptcy, insolvency, reorganization or similar proceeding involving or affecting any Buyer or any of its Affiliate.
Appears in 1 contract
Guaranty of Performance. Guarantor additionally hereby unconditionally absolutely, unconditionally, and irrevocably guarantees to Administrative Agent the full, complete, and Lenders the timely performance of all other obligations of the Guaranteed Obligations, including that Borrower under will duly and punctually perform, observe, and comply with all of the terms, covenants, and conditions of the Loan Agreement and the other Loan Documents, whether according to their present terms, at any earlier or accelerated date or dates as provided in the Loan Documents, includingor pursuant to any extension of time or to any change or changes in the terms, without limiting the generality covenants, or conditions of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; and
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates Documents now or governmental approvals required by law hereafter made or the applicable lease, on or before the date required in such leasegranted. If any of such obligations of Borrower the Guaranteed Obligations are not complied withwith or performed, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (ia) assume all responsibility for the completion full, complete, and timely performance of the TI Work Guaranteed Obligations and, at Guarantor’s own cost and expense, to perform and cause performance of all of the TI Work to be fully completed Guaranteed Obligations in strict accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; , and (iiib) indemnify and hold Administrative Agent and Lenders harmless from any and all lossINDEMNIFY, costDEFEND AND HOLD AGENT HARMLESS FROM AND AGAINST ANY AND ALL ACTUAL LOSS, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default existsCOST, Lenders will make the Loan proceedsLIABILITY, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or LendersOR EXPENSE THAT AGENT MAY SUFFER BY ANY REASON OF ANY SUCH NONCOMPLIANCE OR NONPERFORMANCE UNLESS DUE TO AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The amount of any and all expenditures made by Administrative Agent for resulting or arising from Guarantor’s failure to perform the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal Guaranteed Obligations pursuant to the interest rate provided for in the Note and, together with such interest, terms of this Guaranty shall be immediately due and payable by Guarantor to Administrative Agent, together with interest at the highest interest rate then accruing under any promissory note then outstanding executed by Borrower and payable to the order of Agent, plus 5% per annum, not to exceed the maximum interest permitted by applicable law. Guarantor further acknowledges and agrees that Guarantor may be required to perform the Guaranteed Obligations in full without assistance or support from Borrower, any other Obligated Party or any other Person. Guarantor agrees that if all or any part of the Guaranteed Obligations shall not be punctually performed when and as stated in the Loan Documents, Guarantor shall immediately perform the Guaranteed Obligations. Agent upon demand. Neither Lenders nor Administrative Agent may, but shall have nor shall they ever have no obligation to, make demand(s) at any obligation time coincident with or after the time for performance of all or part of the Guaranteed Obligations, and demand(s) may be made from time to complete time with respect to the TI Work same or take any such actiondifferent items of the Guaranteed Obligations. The obligations and liability of Guarantor under this Section 2 2.02 shall not be limited or restricted in any way by the existence of (of, or by any terms of) , the guaranty of payment under Section 12.01.
Appears in 1 contract
Sources: Unlimited Guaranty (Ustx, LLC)
Guaranty of Performance. Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders Lender the timely performance of all other obligations of Borrower under all of the Loan Documents, including, without limiting the generality of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; andAgreement and with the Plans;
(b) that the TI Work Improvements will be completed, lien free, completed and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable leaseLoan Agreement, on or before the date Completion Date required in such leasethe Loan Agreement; and
(c) that Borrower will duly and punctually perform and observe all other terms, covenants, and conditions of the Note, the Deed of Trust, the Loan Agreement, the Environmental Agreement or any other Loan Document, [or any Interest Rate Protection Agreement] whether according to the present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time or to any change or changes in the terms, covenants, or conditions thereof now or hereafter made or granted. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders Lender to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work Improvements and, at Guarantor’s own cost and expense, cause the TI Work Improvements to be fully completed in accordance with the leases of the Property Plans and the Loan Documents; (ii) pay all bills in connection with the construction of the TI WorkImprovements; and (iii) indemnify and hold Administrative Agent and Lenders Lender harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders Lender may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders Lender will make the Loan proceeds, if any, proceeds available under and subject to the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the Lender’s rights and remedies of Administrative Agent and Lendersremedies, Administrative AgentLender, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent Lender may, at its option, without notice to Guarantor or anyone else, complete the TI Work Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent Lender against Borrower or Guarantor Guarantor, with such changes or modifications in the Plans as Lender deems necessary and expend such sums as Administrative AgentLender, in its sole and absolute discretion, deems necessary or advisable to complete the TI WorkImprovements, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or LendersLender. The amount of any and all expenditures made by Administrative Agent Lender for the foregoing purposes shall bear interest from the date made until repaid to Administrative AgentLender, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent Lender upon demand. Neither Lenders nor Administrative Agent Lender does not have nor and shall they ever never have any obligation to complete the TI Work Improvements or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (or any terms of) the guaranty of payment under Section 1.
Appears in 1 contract
Guaranty of Performance. In order to induce Lender to make the Loan to Borrower, Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders Lender the timely payment and performance of all other obligations Obligations (as defined in the Loan Agreement), primary or secondary, certain or contingent of Borrower to Lender now or hereafter owing or incurred (including without limitation costs and expenses incurred by Lender in attempting to collect or enforce any of the foregoing) which are chargeable to Borrower either by law or under the terms of Lender’s arrangements with Borrower relative to the above mentioned loan. The word “Obligation” is used herein in its most comprehensive sense, and includes any and all advances (including future advances and those advances made by Lender to protect, enlarge or preserve the priority, propriety, or amount of its security interest against mechanic’s liens, equitable liens, or statutory claimants, or otherwise), debts, obligations and liabilities of Borrower heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not, absolute or contingent, liquidated, determined or undetermined, and whether Borrower may be liable individually or jointly with others, or whether recovery upon such indebtedness may be or hereafter become barred by any statute of limitations, or whether such indebtedness may be or hereafter become otherwise unenforceable. Guarantor consents that the terms, covenants, and provisions contained in any of the Loan DocumentsDocuments may be altered, includingextended, released, modified or cancelled, all without limiting the generality any further consent of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; and
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest agrees that this Guaranty shall in no way be affected, diminished or released by any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agentalteration, at a rate per annum equal to the interest rate provided for in the Note andextension, together with such interestmodification, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work release or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (or any terms of) the guaranty of payment under Section 1cancellation.
Appears in 1 contract
Guaranty of Performance. Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent Secured Parties the full, complete and Lenders the timely performance of all other obligations of Borrower under all of the Loan DocumentsGuaranteed Obligations, including, without limiting the generality limitation, that Borrowers will duly and punctually perform, observe and comply with all of the foregoing:
(a) that terms, covenants and conditions of the tenant improvement work required Credit Agreement, the Lien Instruments, the Environmental Indemnity and the other Loan Documents, whether according to be performed by the landlord under present terms thereof, at any and all leasesearlier or accelerated date or dates as provided therein, both existing and future, or pursuant to any extension of space time or to any change or changes in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; and
(b) that the TI Work will be completedterms, lien free, and ready for occupancy, including delivery of any permits, certificates covenants or governmental approvals required by law conditions thereof now or the applicable lease, on hereafter made or before the date required in such leasegranted. If any of such obligations of Borrower the Guaranteed Obligations are not complied with, with or performed in any respect whatsoeverwhatsoever beyond any applicable notice and cure period, and without the necessity of any notice from Administrative Agent or Lenders any Secured Party to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion full, complete and timely performance of the TI Work Guaranteed Obligations and, at Guarantor’s own cost and expense, to perform and cause performance of all the TI Work to be fully completed Guaranteed Obligations in strict accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan AgreementDocuments; and (ii) INDEMNIFY, DEFEND AND HOLD SECURED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LOSS, COST, LIABILITY OR EXPENSE THAT ANY SECURED PARTY MAY SUFFER BY ANY REASON OF ANY SUCH NONCOMPLIANCE OR NONPERFORMANCE. If after Guarantor further acknowledges and agrees that Guarantor may be required to perform the occurrence of a Default, and Guaranteed Obligations in full without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, is dissatisfied with the progress of construction by assistance or support from any Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right Person. Guarantor agrees that if all or remedy any part of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or take any such action. The obligations and liability of Guarantor under this Section 2 Guaranteed Obligations shall not be limited punctually performed when and as stated in the Loan Documents, Guarantor shall, immediately upon demand by any Secured Party (provided, however, that the failure of any Secured Party to make such demand shall neither relieve nor discharge Guarantor in any respect of its Guaranteed Obligations under this Guaranty, any condition or restricted requirement of such demand to Guarantor’s liability under this Guaranty being hereby waived by Guarantor), perform the existence Guaranteed Obligations. Secured Parties may, but shall have no obligation to, make demand(s) at any time coincident with or after the time for performance of (all or any terms ofpart of the Guaranteed Obligations, and demand(s) may be made from time to time with respect to the guaranty same or different items of payment under Section 1.the Guaranteed Obligations. EXHIBIT E-1 – CBL 4873-9001-7310\2
Appears in 1 contract
Guaranty of Performance. (a) Guarantor additionally hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders Lender the timely complete performance when due of all other obligations Obligations of Borrower any or all of the Borrowers under all of the Loan Documents, including, without limiting the generality of the foregoing, all such Obligations of any or all of the Borrowers to:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; and
(b) that the TI Work will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates or governmental approvals required by law or the applicable lease, on or before the date required in such lease. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (i) assume all responsibility for Complete the completion construction or making of Improvements to any Eligible Property which is part of the TI Work and, at Guarantor’s own cost Collateral Pool and expense, cause the TI Work to be fully completed in accordance with the leases as part of the Property and Borrower’s plan to achieve Stabilization of the Loan Documents; same (“Construction of the Improvements”);
(ii) pay Make all bills in connection with deposits required under the construction terms of the TI Work; Loan Agreement and the other Loan Documents, as and when required;
(iii) indemnify Promptly pay in full and hold Administrative Agent and Lenders harmless from any and discharge all loss, cost, liability or expense Property Assessments (as that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make term is defined in the Loan proceeds, if any, available under and Mortgage) prior to the day upon which the same shall become delinquent (subject to the terms of the Mortgages regarding permitted contests of such Property Assessments);
(iv) Pay, at or before the times required by the Loan Documents, the premiums on all policies of insurance required to be maintained under the terms of the Loan Documents; and
(v) Duly and punctually perform and observe all other terms, covenants and conditions of the Note, the Loan Agreement, the Mortgages, the Environmental Agreements, all other Loan Documents, and any Swap Contract.
(b) Upon demand by Lender following the occurrence and during the continuance of an Event of Default under any of the Loan Documents (an “Event of Default”), Guarantor will cause all Improvements to be completed in accordance with the requirements of the Loan Agreement and other Loan Documents and will pay all bills in connection therewith. If after Lender shall have requested Guarantor to complete or cause the occurrence completion of a DefaultConstruction of the Improvements or the renovation or equipping thereof, Guarantor shall be entitled to requisition and draw all of the undisbursed Loan proceeds intended to be used for such Construction of the Improvements pursuant to the Budget for the same (but not in excess of the committed amount of the Loan for the same), together with any deposits in the Borrower’s Deposit Account made with respect to the Construction of the Improvements. Lender shall disburse such funds for the purpose of, and without limiting to the rights and remedies extent necessary for, completing the Construction of Administrative Agent and Lenders, Administrative Agent, the Improvements in its sole and absolute discretion, is dissatisfied accordance with the progress of construction by Borrower and/or GuarantorBudget for the same, Administrative Agent mayprovided that:
(i) Guarantor shall be performing the Guaranteed Obligations, at its option, without notice including but not limited to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures performance related to the Construction of the Improvements, or causing the performance of the same with due diligence;
(ii) Guarantor shall have made all required deposits into the Borrower’s Deposit Account and all other deposits required under the Loan Agreement;
(iii) All such disbursements of Loan proceeds to Guarantor shall be secured by Administrative Agent the Mortgage with respect to the same and any other collateral or security for the foregoing purposes Loan with the same priority as all previous advances of Loan proceeds to Borrowers;
(iv) Guarantor shall bear interest from have cured all Defaults and Events of Default under the date made until repaid Loan, provided that Guarantor shall not be required to Administrative Agent, at a rate per annum equal cure any non-monetary Default or Event of Default which is personal to Borrowers and therefore not susceptible to cure by Guarantor; and
(v) Guarantor shall otherwise comply with the interest rate provided for in provisions of the Note and, together with such interest, shall be due Loan Agreement governing draw requests and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete disbursement of the TI Work or take any such action. Loan.
(c) The liability and obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (of, or any terms of) , the guaranty of payment under Section 11 or the guaranty of specific obligations under Section 3.
Appears in 1 contract
Sources: Guaranty Agreement (Resource Real Estate Opportunity REIT, Inc.)
Guaranty of Performance. Guarantor additionally (a) Echo hereby irrevocably and unconditionally guaranties (the “Guaranty”) to Seller, Holdings and irrevocably guarantees to Administrative Agent Shareholder the full and Lenders timely payment of any amounts payable and the timely prompt performance of all other obligations of Borrower Purchaser under all this Agreement (for purposes of this Section 11.16, the “Purchaser’s Obligations”) when and as the same shall become due hereunder. The Guaranty is a guarantee of payment and performance and not of collection only. Each of the Loan DocumentsSeller, includingHoldings and Shareholder acknowledges and agrees that Purchaser’s Obligations are subject to and shall be determined in accordance with the express terms and conditions of this Agreement. The liability of Echo under the Guaranty is absolute and unconditional and the Guaranty shall be binding upon Echo and its successors and assigns, shall not be subject to any counterclaim, setoff, deduction or defense based upon any claim Echo may have against Seller, Holdings or the Shareholder hereunder or otherwise, and shall remain in full force and effect without limiting regard to, and shall not be released, discharged or in any way affected by, any circumstance or condition whatsoever which might otherwise constitute a legal or equitable discharge or defense of a guarantor; provided, that any claim under the generality Guaranty against Echo shall be subject to, and Echo shall have available to it in defense of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any such claim, any and all leasesof Purchaser’s rights and defenses (including rights of set-off or deduction), both whether arising hereunder or otherwise, in respect of any such claim. Echo agrees that the Guaranty may be enforced by the Shareholder without the necessity at any time of resorting to or exhausting any other remedy or without the necessity at any time of having recourse to this Agreement. Echo waives any right now or hereafter existing and futurerequiring the Shareholder, of space in as a condition to proceeding against Echo, to proceed against Purchaser or any other person. The Guaranty shall survive the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; andClosing.
(b) Echo hereby waives and agrees that it shall not at any time insist upon, plead or in any manner whatever claim or take the TI Work will be completedbenefit or advantage of, lien freeany appraisal, valuation, stay, extension, marshaling of assets or redemption laws, exemption, or any defense based upon suretyship or impairment of collateral, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the payment and ready for occupancyperformance by Echo of the Purchaser’s Obligations under, including delivery of any permits, certificates or governmental approvals required by law or the applicable leaseenforcement by the Shareholder of, on the Guaranty. Echo hereby waives diligence, presentment and demand (whether for non-payment or before protest or of acceptance, maturity, extension of time, change in nature or form of the date required Purchaser’s Obligations, acceptance of further security, release of further security, composition or agreement arrived at as to the amount of, or the terms of, the Purchaser’s Obligations, notice of adverse change in such lease. If the Purchaser’s financial condition or any other fact which might increase the risk to Echo) with respect to any of such obligations the Purchaser’s Obligations or all other demands whatsoever and waives the benefit of Borrower all provisions of law which are not complied with, or might be in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance conflict with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement. Guaranty.
(c) If after an action or proceeding is brought to interpret or enforce the occurrence Guaranty, then the prevailing party shall be entitled to recover its reasonable attorney fees and costs of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agentsuit incurred, in its sole and absolute discretionaddition to other available relief, is dissatisfied with the progress of construction by Borrower and/or Guarantor, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI Work, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or Lenders. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal respect to the interest rate provided for in interpretation or enforcement of the Note and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent have nor shall they ever have any obligation to complete the TI Work or take any such action. The obligations and liability of Guarantor under this Section 2 shall not be limited or restricted by the existence of (or any terms of) the guaranty of payment under Section 1Guaranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Echo Global Logistics, Inc.)
Guaranty of Performance. Guarantor additionally Guarantor, jointly and severally with all other guarantors of the Loan, hereby unconditionally and irrevocably guarantees to Administrative Agent and for the benefit of the Lenders the timely performance of 100% of all other obligations of Borrower under all of the Loan DocumentsDocuments other than the Principal Indebtedness and the Other Monetary Obligations, including, without limiting the generality of the foregoing:
(a) that the tenant improvement work required to be performed by the landlord under any and all leases, both existing and future, of space in the Improvements (the “TI Work”) will be constructed in accordance with such leases and the Loan Agreement; andAgreement and with the Plans;
(b) that the TI Work Improvements will be completed, lien free, and ready for occupancy, including delivery of any permits, certificates certificates, or governmental approvals required by law or the applicable leaseLoan Agreement, on or before the date Completion Date required in such leasethe Loan Agreement; and
(c) that Borrower will duly and punctually perform and observe all other terms, covenants, and conditions of the Notes, the Deed of Trust, the Loan Agreement, the Environmental Agreement or any other Loan Document, or any Swap Transaction whether according to the present terms thereof, at any earlier or accelerated date or dates as provided therein, or pursuant to any extension of time or to any change or changes in the terms, covenants, or conditions thereof now or hereafter made or granted. If any of such obligations of Borrower are not complied with, in any respect whatsoever, and without the necessity of any notice from Administrative Agent or Lenders such failure to Guarantor, Guarantor agrees to (i) assume all responsibility for the completion of the TI Work and, at Guarantor’s own cost and expense, cause the TI Work to be fully completed in accordance with the leases of the Property and the Loan Documents; (ii) pay all bills in connection with the construction of the TI Work; and (iii) indemnify and hold Administrative Agent and Lenders harmless from any and all loss, cost, liability or expense that Administrative Agent and Lenders may suffer by reason of any such non-compliance. So long as all of such obligations are being performed by Borrower or Guarantor and no Default exists, Lenders will make the Loan proceeds, if any, available under and subject to the terms of the Loan Agreement. If after the occurrence of a Default, and without limiting the rights and remedies of Administrative Agent and Lenders, Administrative Agent, in its sole and absolute discretion, comply is dissatisfied with the progress of construction by Borrower and/or Guarantorcontinuing, Administrative Agent may, at its option, without notice to Guarantor or anyone else, complete the TI Work Improvements either before or after commencement of foreclosure proceedings or before or after exercise of any other right or remedy of Administrative Agent against Borrower or Guarantor Guarantor, with such changes or modifications in the Plans as Administrative Agent deems necessary and expend such sums as Administrative Agent, in its sole and absolute discretion, deems necessary or advisable to complete the TI WorkImprovements, and Guarantor hereby waives any right to contest any such expenditures by Administrative Agent and/or LendersAgent. The amount of any and all expenditures made by Administrative Agent for the foregoing purposes shall bear interest from the date made until repaid to Administrative Agent, at a rate per annum equal to the interest rate provided for in the Note Loan Agreement and, together with such interest, shall be due and payable by Guarantor to Administrative Agent upon demand. Neither Lenders nor Administrative Agent does not have nor and shall they ever never have any obligation to complete the TI Work Improvements or take any such other action. The obligations and liability of Guarantor under this Section 2 3 shall not be limited limited, restricted or restricted reduced by the existence terms of (or any terms of) the guaranty of payment under Section 1guaranties set forth in Sections 1 and 2.
Appears in 1 contract
Sources: Guaranty Agreement (MGM Mirage)