Guaranty of Servicer Obligations. (i) FCI hereby irrevocably and unconditionally guarantees to each of the Collateral Agent, the Trustee and the Noteholders, the due and punctual performance by FAC of all of its obligations in its capacity as Servicer hereunder (collectively, the "FAC Servicer Obligations"). ------------------------ (ii) It shall not be a condition to the accrual of the obligations of FCI hereunder that the Trustee or any other Person shall have first made any request of or demand upon or given any notice to FAC or have initiated any action or proceeding against FAC in respect thereof. The Trustee may proceed to enforce the obligations of FCI under the foregoing paragraph without first pursuing or exhausting any right or remedy which any of the Collateral Agent, the Trustee or any of the Noteholders may have against FAC or any other Person, the Collateral or any other property. (iii) FCI hereby agrees that its obligations under this Section 5.16(a) shall be irrevocable and unconditional, irrespective of (A) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy) of the FAC Servicer Obligations, any Pledged Contract or any of the other Collateral, (B) the absence of any attempt to collect any Payments from the Obligor related thereto or any guarantor, or to collect the FAC Servicer Obligations from FAC or any other Person, (C) the waiver, consent, extension, forbearance or granting of any indulgence by any of the Collateral Agent, the Trustee or the Noteholders, with respect to any provision of any instrument evidencing the FAC Servicer Obligations or any Pledged Contract, (D) any change of the time, manner or place of performance of, or in any other term of any of the FAC Servicer Obligations or any Pledged Contract, including without limitation, any amendment to or modification of any of the Facility Documents, (E) any law, regulation or order of any jurisdiction affecting any term of any of the FAC Servicer Obligations, any Pledged Contract, or rights of any of the Collateral Agent, the Trustee or the Noteholders, (F) the failure by any of the Collateral Agent, the Trustee or the Noteholders to take any steps to perfect and maintain perfected its respective interest in any Collateral, (G) any exchange or release of any Collateral or other property in which an interest was acquired pursuant to the Facility Documents, (H) any failure to obtain any authorization or approval from, or to notify or file with, any governmental authority or regulatory body, which authorization, approval, notification or filing was required in connection with the performance of the obligations of FAC or FCI hereunder or (I) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of, the FAC Servicer Obligations or any of FCI's obligations hereunder, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, or (J) any termination of FAC as Servicer, and appointment of a Successor Servicer. (iv) FCI hereby waives promptness, diligence, notice of default by FAC, notice of the incurrence of any FAC Servicer Obligations and any other notice with respect to any of the FAC Servicer Obligations and the Facility Documents and any other document related thereto. FCI hereby warrants that its has adequate means to obtain from FAC on a continuing basis, all information concerning the financial condition of FAC and the Collateral, and that it is not relying on any of the Collateral Agent, the Trustee or the Noteholders to provide such information either now or in the future. (v) FCI further agrees that: (A) its obligations under this Section 5.16(a) shall not be limited by any valuation, estimation or disallowance made in connection with any proceedings involving FAC filed under the Bankruptcy Code (whether pursuant to Section 502 thereof or any other section thereof); and (B) neither the Trustee nor the Collateral Agent shall be under any obligation to marshall any assets in fav▇▇ of or against or in payment of any or all of the FAC Servicer Obligations. (vi) FCI hereby waives all set-offs and counterclaims and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of or reliance upon this Agreement. FCI's obligations under this Section 5.16(a) shall not be limited if any of the Collateral Agent, the Trustee or the Noteholders is precluded for any reason (including without limitation, the application of the automatic stay under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the FAC Servicer Obligations. (vii) FCI hereby agrees not to exercise or assert any rights which it may acquire by way of subrogation under this Section 5.16(a) if any, unless and until all of the FAC Servicer Obligations shall have been paid and/or performed in full and in cash. If any payment shall be made to FCI on account of any subrogation rights at any time prior to the occurrence of the events described in the preceding sentence, each and every amount so paid will be held in trust for the benefit of the Collateral Agent, the Trustee or the Noteholders and forthwith be paid to the Trustee to be credited and applied to the FAC Servicer Obligations to the extent then unsatisfied, in accordance with the terms of this letter of undertaking or any document delivered in connection therewith. (viii) The agreements of FCI in this Section 5.16(a) shall remain in full force and effect until all of the FAC Servicer Obligations shall have been performed in full; provided that to the extent that FAC makes a -------- payment, transfer or deposit to any of the Issuer, the Collateral Agent, the Trustee or the Noteholders, which payment, transfer or deposit (or any part thereof) is subsequently invalidated, declared to be fraudulent or preferential or set aside and required to be repaid to FAC, its estate, trustee or receiver or any other Person, under any Debtor Relief Law, common law or equitable cause, then to the extent of such repayment, the agreements of FCI hereunder in respect of such FAC Servicer Obligations or part thereof which had been so repaid, shall be reinstated and continued in full force and effect as of the date such initial payment, transfer or deposit occurred. (ix) FCI acknowledges that (i) performance of all of the terms contained in this Section 5.16(a) is necessary, and (ii) substantial performance shall not be deemed sufficient performance. In addition, FCI consents to an award of specific performance if sought by the Trustee in the event a court of competent jurisdiction determines a breach of any of its obligations hereunder to have occurred. (x) In the event that, notwithstanding anything in this Section 5.16(a) to the contrary, FCI has the right under applicable law to revoke its obligations hereunder, this Agreement shall continue in full force and effect until a written revocation executed by FCI, specifically referring to this Section 5.16(a), is received by the Trustee at its address for notice set forth herein. Any such revocation shall not affect the rights of any of the Collateral Agent, the Trustee or the Noteholders hereunder with respect to any of the FAC Servicer Obligations (including without limitation any FAC Servicer Obligations which are contingent or unmatured) which arose on or prior to the date on which the above-referenced revocation was received by the Trustee.
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Sources: Pledge and Servicing Agreement (Fairfield Communities Inc)
Guaranty of Servicer Obligations. (i) FCI hereby irrevocably and unconditionally guarantees to each of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety and the NoteholdersL/C Bank, the due and punctual performance by FAC of all of its obligations in its capacity as Servicer hereunder (collectively, the "FAC Servicer Obligations"). ------------------------.
(ii) It shall not be a condition to the accrual of the obligations of FCI hereunder that the Trustee Collateral Agent or any other Person shall have first made any request of or demand upon or given any notice to FAC or have initiated any action or proceeding against FAC in respect thereof. The Trustee Collateral Agent may proceed to enforce the obligations of FCI under the foregoing paragraph without first pursuing or exhausting any right or remedy which any of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or any of the Noteholders L/C Bank, may have against FAC or any other Person, the Collateral or any other property.
(iii) FCI hereby agrees that its obligations under this Section 5.16(a9.14(b) shall be irrevocable and unconditional, irrespective of (A) the validity, enforceability, avoidance, subordination, discharge, or disaffirmance by any Person (including a trustee in bankruptcy) of the FAC Servicer Obligations, any Pledged Contract or any of the other Collateral, (B) the absence of any attempt to collect any Payments from the Obligor related thereto or any guarantor, or to collect the FAC Servicer Obligations from FAC or any other Person, (C) the waiver, consent, extension, forbearance or granting of any indulgence by any of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or the NoteholdersL/C Bank, with respect to any provision of any instrument evidencing the FAC Servicer Obligations or any Pledged Contract, (D) any change of the time, manner or place of performance of, or in any other term of any of the FAC Servicer Obligations or any Pledged Contract, including without limitation, any amendment to or modification of any of the Facility Documents, (E) any law, regulation or order of any jurisdiction affecting any term of any of the FAC Servicer Obligations, any Pledged Contract, or rights of any of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or the NoteholdersL/C Bank, (F) the failure by any of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or the Noteholders L/C Bank to take any steps to perfect and maintain perfected its respective interest in any Collateral, (G) any exchange or release of any Collateral or other property in which an interest was acquired pursuant to the Facility Documents, (H) any failure to obtain any authorization or approval from, or to notify or file with, any governmental authority or regulatory body, which authorization, approval, notification or filing was required in connection with the performance of the obligations of FAC or FCI hereunder or (I) any impossibility or impracticability of performance, illegality, force majeure, any act of government, or other circumstances which might constitute a defense available to, or a discharge of, the FAC Servicer Obligations or any of FCI's obligations hereunder, or any other circumstance, event or happening whatsoever whether foreseen or unforeseen and whether similar to or dissimilar to anything referred to above, or (J) any termination of FAC as Servicer, and appointment of a Successor Servicer.
(iv) FCI hereby waives promptness, diligence, notice of default by FAC, notice of the incurrence of any FAC Servicer Obligations and any other notice with respect to any of the FAC Servicer Obligations and the Facility Documents and any other document related thereto. FCI hereby warrants that its has adequate means to obtain from FAC on a continuing basis, all information concerning the financial condition of FAC and the Collateral, and that it is not relying on any of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or the Noteholders L/C Bank to provide such information either now or in the future.
(v) FCI further agrees that:
(A) its obligations under this Section 5.16(a9.14(b) shall not be limited by any valuation, estimation or disallowance made in connection with any proceedings involving FAC filed under the Bankruptcy Code (whether pursuant to Section 502 thereof or any other section thereof); and
(B) neither the Trustee nor the Collateral Agent shall not be under any obligation to marshall ▇▇▇▇▇▇▇▇ any assets in fav▇▇ favor of or against or in payment of any or all of the FAC Servicer Obligations.
(vi) FCI hereby waives all set-offs and counterclaims and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of or reliance upon this Credit Agreement. FCI's obligations under this Section 5.16(a9.14(b) shall not be limited if any of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or the Noteholders L/C Bank, is precluded for any reason (including without limitation, the application of the automatic stay under Section 362 of the Bankruptcy Code) from enforcing or exercising any right or remedy with respect to the FAC Servicer Obligations.
(vii) FCI hereby agrees not to exercise or assert any rights which it may acquire by way of subrogation under this Section 5.16(a) 9.14(b), if any, unless and until all of the FAC Servicer Obligations shall have been paid and/or performed in full and in cash. If any payment shall be made to FCI on account of any subrogation rights at any time prior to the occurrence of the events described in the preceding sentence, each and every amount so paid will be held in trust for the benefit of the Collateral Agent, the Trustee or Administrative Agent, Triple-A, the Noteholders Surety and the L/C Bank and forthwith be paid to the Trustee Collateral Agent to be credited and applied to the FAC Servicer Obligations to the extent then unsatisfied, in accordance with the terms of this letter of undertaking or any document delivered in connection therewith.
(viii) The agreements of FCI in this Section 5.16(a9.14(b) shall remain in full force and effect until all of the FAC Servicer Obligations shall have been performed in full; provided that to the extent that FAC makes a -------- payment, transfer or deposit to any of the IssuerBorrower, the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or the NoteholdersL/C Bank, which payment, transfer or deposit (or any part thereof) is subsequently invalidated, declared to be fraudulent or preferential or set aside and required to be repaid to FAC, its estate, trustee or receiver or any other Person, under any Debtor Relief Lawbankruptcy law, state or federal law, common law or equitable cause, then to the extent of such repayment, the agreements of FCI hereunder in respect of such FAC Servicer Obligations or part thereof which had been so repaid, shall be reinstated and continued in full force and effect as of the date such initial payment, transfer or deposit occurred.
(ix) FCI acknowledges that (i) performance of all of the terms contained in this Section 5.16(a9.14(b) is necessary, and (ii) substantial performance shall not be deemed sufficient performance. In addition, FCI consents to an award of specific performance if sought by the Trustee Collateral Agent in the event a court of competent jurisdiction determines a breach of any of its obligations hereunder to have occurred.
(x) In the event that, notwithstanding anything in this Section 5.16(a9.14(b) to the contrary, FCI has the right under applicable law to revoke its obligations hereunder, this Credit Agreement shall continue in full force and effect until a written revocation executed by FCI, specifically referring to this Section 5.16(a9.14(b), is received by the Trustee Collateral Agent at its address for notice set forth herein. Any such revocation shall not affect the rights of any of the Collateral Agent, the Trustee Administrative Agent, Triple-A, the Surety or the Noteholders L/C Bank hereunder with respect to any of the FAC Servicer Obligations (including without limitation any FAC Servicer Obligations which are contingent or unmatured) which arose on or prior to the date on which the above-referenced revocation was received by the TrusteeCollateral Agent.
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