Rights of the Secured Parties. The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Facility Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. The liabilities and obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other liabilities or obligations of any other obligor under or in respect of the Facility Documents (each, individually, an “Obligated Party” and collectively, “Obligated Parties”); and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Obligated Party or whether the Borrower or other Obligated Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute, and unconditional irrespective of, and the Guarantor hereby irrevocably waives (to the extent permitted by applicable law), any defenses it may now have or hereafter acquire in any way relating to, any or all of the following: (a) any lack of validity or enforceability of any Facility Document or any agreement or instrument relating thereto, or any present or future law, regulation or order of any jurisdiction (whether of right or in fact) or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Facility Document or the Obligations. (b) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other liabilities or obligations of any other Obligated Party under or in respect of the Facility Documents, or any other amendment or waiver of or any consent to departure from any Facility Document, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower; (c) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release, amendment or waiver of, or consent to departure from, any other agreement, for all or any of the Guaranteed Obligations; (d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other liabilities or obligations of any Obligated Party under the Facility Documents or any other assets of any Obligated Party or any of its Subsidiaries; (e) any change, restructuring, or termination of the corporate or legal structure or existence of any Obligated Party or any of its Subsidiaries; (f) any failure of any Secured Party to disclose to any Obligated Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligated Party now or hereafter known to each Secured Party (the Guarantor waiving any duty on the part of the Secured Parties to disclose such information); (g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations; (h) any right or power of any third party, individually or in the name of the Borrower, any Obligated Party, the Administrative Agent or any other Secured Party, to assert any claim or defense as to the invalidity or unenforceability of any the Guaranteed Obligations; or (i) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligated Party or any other guarantor or surety, other than all Guaranteed Obligations having been Paid in Full.
Appears in 2 contracts
Sources: Springing Guaranty Agreement (Saratoga Investment Corp.), Limited Guaranty Agreement (Saratoga Investment Corp.)
Rights of the Secured Parties. The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Facility DocumentsLimitations on Secured Parties' Secured Obligations. With respect to Accounts, regardless of any lawContractual Obligations, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. The liabilities and obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other liabilities or obligations of any other obligor under or in respect of the Facility Documents (each, individually, an “Obligated Party” and collectively, “Obligated Parties”); and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Obligated Party or whether the Borrower or other Obligated Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absoluteChattel Paper, and unconditional irrespective of, and Instruments constituting the Guarantor hereby irrevocably waives (to the extent permitted by applicable law), any defenses it may now have or hereafter acquire in any way relating to, any or all of the followingCollateral:
(a) It is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, such Grantor shall remain liable under each of the Contractual Obligations to observe and perform all the conditions and obligations to be observed and performed by it thereunder and such Grantor shall perform all of its duties and obligations thereunder, all in accordance with and pursuant to the terms and provisions of each such Contractual Obligations. None of the Secured Parties shall have any lack obligation or liability under any Contractual Obligations by reason of, or arising out of, this Agreement or the granting of validity a security interest in any Contractual Obligations to the Administrative Agent on behalf, and for the ratable benefit of, the Secured Parties or enforceability the receipt by the Administrative Agent or any Lender of any Facility Document payment relating to any Contractual Obligations pursuant hereto, nor shall the Administrative Agent or any agreement Lender be required or instrument relating theretoobligated in any manner to perform or fulfill any of the obligations of such Grantor under, or pursuant to, any Contractual Obligations, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party to any Contractual Obligations, or to present or future lawfile any claim, regulation or order to take any action to collect or enforce any performance or the payment of any jurisdiction (whether of right amounts which may have been assigned to it or in fact) to which it may be entitled at any time or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Facility Document or the Obligationstimes.
(b) any change The Administrative Agent authorizes each Grantor to collect its Accounts, Chattel Paper and Instruments that are Collateral, provided that such collection is performed in the time, a prudent and businesslike manner, and the Administrative Agent may, upon the occurrence and during the continuance of any Event of Default and without notice, limit or place terminate said authority at any time. If required by the Administrative Agent at any time during the continuance of any Event of Default, any Proceeds, when first collected by such Grantor, received in payment of, of any such Account or in payment for any of its Inventory or on account of any of its Contractual Obligations, shall be promptly deposited by such Grantor in precisely the form received (with all necessary endorsements) in a special bank account maintained by the Administrative Agent and subject to withdrawal only by the Administrative Agent, as hereinafter provided, and until so turned over shall be deemed to be held in trust by such Grantor for and as the Administrative Agent's property and shall not be commingled with such Grantor's other term offunds or properties. Such Proceeds, when deposited, shall continue to be collateral security for all of the Secured Obligations and shall not constitute payment thereof until applied as hereinafter provided. The Administrative Agent shall, upon the request of the Requisite Lenders, apply all or any a part of the Guaranteed Obligations funds on deposit in such special account to pay all or any other liabilities or obligations of any other Obligated Party under or in respect part of the Facility DocumentsSecured Obligations in accordance with the provisions of Section 2.13(e) of the Credit Agreement, and any part of such funds that the Requisite Lenders elect not to apply in such manner and to deem not required as collateral security for the Secured Obligations shall be paid over from time to time by the Administrative Agent to such Grantor. If an Event of Default has occurred and is continuing, at the request of the Administrative Agent, such Grantor shall deliver to the Administrative Agent all original and other documents evidencing, and relating to, the sale and delivery of such Inventory or any other amendment the performance of labor or waiver of or any consent to departure from any Facility Documentservice which created such Accounts, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower;all original orders, invoices and shipping receipts.
(c) The Administrative Agent may, at any taking, exchange, release or non-perfection time upon the occurrence and during the continuance of any Collateral Default or any other collateralEvent of Default and after first notifying the relevant Grantor of its intention to do so, or any takingnotify Account Debtors of such Grantor, releaseparties to Contractual Obligations of such Grantor, amendment or waiver ofobligors of Instruments of such Grantor, or consent and obligors in respect of Chattel Paper of such Grantor that the Accounts and the right, title and interest of such Grantor in and under such Contractual Obligations, Instruments and Chattel Paper have been assigned to departure from, any other agreement, for all or any the Administrative Agent and that payments shall be made directly to the Administrative Agent. Upon the request of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateralAdministrative Agent, or proceeds thereofsuch Grantor will so notify all such Account Debtors, parties to all or any of the Guaranteed such Contractual Obligations, or any manner obligors of sale or other disposition such Instruments and obligors in respect of any Collateral or any other collateral for all or any such Chattel Paper. Upon the occurrence and during the continuance of an Event of Default, the Guaranteed Obligations or any other liabilities or obligations of any Obligated Party under the Facility Documents or any other assets of any Obligated Party or any of Administrative Agent may in its Subsidiaries;
(e) any change, restructuring, or termination of the corporate or legal structure or existence of any Obligated Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligated Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligated Party now or hereafter known to each Secured Party (the Guarantor waiving any duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations;
(h) any right or power of any third party, individually own name or in the name of others communicate with such Account Debtors, parties to such Contractual Obligations, obligors of such Instruments and obligors in respect of such Chattel Paper to verify with such Persons to the BorrowerAdministrative Agent's satisfaction the existence, amount and terms of any Obligated Partysuch Accounts or Instruments or Chattel Paper.
(d) Upon reasonable prior notice to the relevant Grantor (unless an Event of Default has occurred and is continuing, in which case no notice is necessary), the Administrative Agent or shall have the right to make test verifications of the Accounts and physical verifications of the Inventory of such Grantor in any other Secured Partymanner and through any medium that it considers advisable, and each Grantor agrees to assert any claim or defense furnish all such assistance and information as to the invalidity or unenforceability of any the Guaranteed Obligations; or
(i) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligated Party or any other guarantor or surety, other than all Guaranteed Obligations having been Paid Administrative Agent may require in Fullconnection therewith.
Appears in 1 contract
Rights of the Secured Parties. The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Facility DocumentsLIMITATIONS ON SECURED PARTIES' OBLIGATIONS. With Respect to Accounts, regardless of any lawContracts, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. The liabilities Chattel Paper and obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other liabilities or obligations of any other obligor under or in respect of the Facility Documents (each, individually, an “Obligated Party” and collectively, “Obligated Parties”); and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Obligated Party or whether the Borrower or other Obligated Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute, and unconditional irrespective of, and the Guarantor hereby irrevocably waives (to the extent permitted by applicable law), any defenses it may now have or hereafter acquire in any way relating to, any or all of the followingInstruments Constituting Collateral:
(a) It is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, such Grantor shall remain liable under each of the Contracts to observe and perform all the conditions and obligations to be observed and performed by it thereunder and such Grantor shall perform all of its duties and obligations thereunder, all in accordance with and pursuant to the terms and provisions of each such Contract. Neither the Agent nor any lack Lender shall have any obligation or liability under any Contract by reason of validity or enforceability arising out of this Agreement or the granting of a security interest in any contract to the Agent on behalf and for the ratable benefit of and the Secured Parties of a security interest therein or the receipt by the Agent or any Lender of any Facility Document payment relating to any Contract pursuant hereto, nor shall the Agent or any agreement Lender be required or instrument relating theretoobligated in any manner to perform or fulfill any of the obligations of such Grantor under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or future lawfile any claim, regulation or order to take any action to collect or enforce any performance or the payment of any jurisdiction (whether of right amounts which may have been assigned to it or in fact) to which it may be entitled at any time or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Facility Document or the Obligationstimes.
(b) any change The Agent authorizes each Grantor to collect its Accounts, Chattel Paper and Instruments that are Collateral, provided that such collection is performed in the time, a prudent and businesslike manner, and the Agent may, upon the occurrence and during the continuance of any Event of Default and without notice, limit or place terminate said authority at any time. If required by the Agent at any time during the continuance of any Event of Default, any Proceeds, when first collected by such Grantor, received in payment of, of any such Account or in payment for any of its Inventory or on account of any of its Contracts, shall be promptly deposited by such Grantor in precisely the form received (with all necessary indorsements) in a special bank account maintained by the Agent and subject to withdrawal only by the Agent, as hereinafter provided, and until so turned over shall be deemed to be held in trust by such Grantor for and as the Agent's property and shall not be commingled with such Grantor's other term offunds or properties. Such Proceeds, when deposited, shall continue to be collateral security for all of the Obligations and shall not constitute payment thereof until applied as hereinafter provided. The Agent shall upon the request of the Majority Lenders apply all or a part of the funds on deposit in said special account to the principal of or interest on or both in respect of any of the Guaranteed Obligations or in accordance with the provisions of Section 8(d) hereof and any other liabilities or obligations part of any other Obligated Party under or in respect such funds which the Majority Lenders elect not so to apply and deem not required as collateral security for the Obligations shall be paid over from time to time by the Agent to such Grantor. If an Event of Default has occurred and is continuing, at the request of the Facility Documents, or any other amendment or waiver of or any consent to departure from any Facility Document, including any increase in the Guaranteed Obligations resulting from the extension of additional credit Agent such Grantor shall deliver to the Borrower;Agent all original and other documents evidencing, and relating to, the sale and delivery of such Inventory or the performance of labor or service which created such Accounts, including, without limitation, all original orders, invoices and shipping receipts.
(c) The Agent may at any takingtime, exchange, release or non-perfection upon the occurrence and during the continuance of any Collateral Default or any other collateralEvent of Default, or any takingafter first notifying the relevant Grantor of its intention to do so, releasenotify Account Debtors of such Grantor, amendment or waiver ofparties to Contracts of such Grantor, or consent obligors of Instruments of such Grantor and obligors in respect of Chattel Paper of such Grantor that the Accounts and the right, title and interest of such Grantor in and under such Contracts, such Instruments and such Chattel Paper have been assigned to departure from, any other agreement, for all or any the Agent and that payments shall be made directly to the Agent. Upon the request of the Guaranteed Obligations;
(d) any manner Agent, such Grantor will so notify such Account Debtors, parties to such Contracts, obligors of application such Instruments and obligors in respect of Collateral or any other collateralsuch Chattel Paper. Upon the occurrence and during the continuance of an Event of Default, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other liabilities or obligations of any Obligated Party under the Facility Documents or any other assets of any Obligated Party or any of Agent may in its Subsidiaries;
(e) any change, restructuring, or termination of the corporate or legal structure or existence of any Obligated Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligated Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligated Party now or hereafter known to each Secured Party (the Guarantor waiving any duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations;
(h) any right or power of any third party, individually own name or in the name of others communicate with such Account Debtors, parties to such Contracts, obligors of such Instruments and obligors in respect of such Chattel Paper to verify with such Persons to the BorrowerAgent's satisfaction the existence, amount and terms of any Obligated Partysuch Accounts, Contracts, Instruments or Chattel Paper.
(d) Upon reasonable prior notice to the relevant Grantor (unless an Event of Default has occurred and is continuing, in which case no notice is necessary), the Administrative Agent or shall have the right to make test verifications of the Accounts and physical verifications of the Inventory of such Grantor in any other Secured Partymanner and through any medium that it considers advisable, and each Grantor agrees to assert any claim or defense furnish all such assistance and information as to the invalidity or unenforceability of any the Guaranteed Obligations; or
(i) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligated Party or any other guarantor or surety, other than all Guaranteed Obligations having been Paid Agent may require in Fullconnection therewith.
Appears in 1 contract
Rights of the Secured Parties. The Guarantor guarantees that (a) It is expressly agreed by the Guaranteed Obligations will Company that, anything herein to the contrary notwithstanding, the Company shall remain liable under each Contract to observe and perform all the conditions and obligations to be paid strictly observed and performed by it thereunder, all in accordance with and pursuant to the terms and provisions of each such Contract. Neither the Collateral Agent nor the Secured Parties shall have any obligation or liability under any Contract by reason of or arising out of this Security Agreement or its assignment to the Collateral Agent for the benefit of the Facility Documents, regardless Secured Parties or the receipt by the Collateral Agent for the benefit of the Secured Parties of any lawpayment relating to any Contract pursuant hereto, regulation nor shall the Collateral Agent or order now the Secured Parties be required or hereafter in effect obligated in any jurisdiction affecting manner to perform or fulfill any of such terms or the rights of any Secured Party with respect thereto. The liabilities and obligations of the Guarantor Company under or in respect of this Guaranty are independent of pursuant to any Contract, or to make any payment or to make any inquiry as to the Guaranteed Obligations nature or any other liabilities or obligations the sufficiency of any other obligor payment received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to take any action to collect or enforce any performance in respect the payment of the Facility Documents (each, individually, an “Obligated Party” and collectively, “Obligated Parties”); and a separate action any amounts which may have been assigned to it or actions to which it may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether entitled at any action is brought against the Borrower time or any other Obligated Party or whether the Borrower or other Obligated Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute, and unconditional irrespective of, and the Guarantor hereby irrevocably waives (to the extent permitted by applicable law), any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Facility Document or any agreement or instrument relating thereto, or any present or future law, regulation or order of any jurisdiction (whether of right or in fact) or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Facility Document or the Obligationstimes.
(b) The Collateral Agent on behalf of the Secured Parties authorizes the Company to collect the Accounts and the Collateral Agent may after the occurrence of any change Event of Default (as defined in the Note) and while it is continuing, without cause upon notice, curtail or terminate said authority at any time. If required by the Collateral Agent at any time after the occurrence of an Event of Default and while it is continuing, mannerany Proceeds, when collected by the Company, whether consisting of checks, notes, drafts, bills of exchange, money orders, commercial paper of any kind whatsoever, or place other documents received in payment of payment of, any Account or in payment for any Inventory or on account of any Contract shall be promptly deposited by the Company in precisely the form received, except for its endorsement when required, in a special bank account maintained by the Collateral Agent subject to withdrawal by the Collateral Agent only, as hereinafter provided, and until so turned over, shall be deemed to be held in trust by the Company for and as the Secured Parties' property and shall not be commingled with the Company's other term offunds. Such Proceeds, when deposited, shall continue to be collateral security for all of the Obligations and shall not constitute payment thereof until applied as hereinafter provided. If an Event of Default shall have occurred and be continuing under the Note, at any time in the Collateral Agent's election in accordance with Section 8 hereof, the Collateral Agent shall apply all or any part of the Guaranteed Obligations or any other liabilities or obligations of any other Obligated Party under or funds on deposit in respect said special account on account of the Facility Documentsprincipal of and/or interest on any of the Obligations, or the order and method of such application to be determined in accordance with this Security Agreement and the Note and any other amendment or waiver part of or any consent such funds which the Collateral Agent elects not so to departure apply and deems not required as collateral security for the Obligations shall be paid over from any Facility Document, including any increase in time to time by the Guaranteed Obligations resulting from the extension of additional credit Collateral Agent to the Borrower;Company. At the Collateral Agent's request, the Company shall deliver to the Collateral Agent copies of all documents evidencing, and relating to, the sale and delivery of Inventory or the performance of labor or service which created the Accounts, including, but not limited to, all original orders, invoices and shipping receipts.
(c) any takingThe Collateral Agent may, exchangebut shall have no obligation to, release or non-perfection after the occurrence of any Collateral or any other collateralan Event of Default and while it is continuing, or any taking, release, amendment or waiver of, or consent to departure from, any other agreement, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other liabilities or obligations of any Obligated Party under the Facility Documents or any other assets of any Obligated Party or any of its Subsidiaries;
(e) any change, restructuring, or termination of the corporate or legal structure or existence of any Obligated Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligated Party any information relating notify account debtors and parties to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligated Party now or hereafter known Contracts that the Accounts and the Contracts have been assigned to each Secured Party (the Guarantor waiving any duty on Collateral Agent for the part benefit of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other guarantor or surety with respect and that payments shall be made directly to the Guaranteed Obligations;
(h) Collateral Agent or, upon the request of the Collateral Agent, the Company will so notify such account debtors and parties to the Contracts. The Collateral Agent may at any right or power time, but shall have no obligation to, in the name of any third party, individually the Company or in the name of others, or after the Borroweroccurrence of an Event of Default and while it is continuing in its own name or in the name of others communicate with account debtors and parties to the Contracts in order to verify with them to the Collateral Agent's satisfaction the existence, amounts and terms of any Obligated PartyAccounts or Contracts.
(d) The Collateral Agent shall have the right, the Administrative Agent or any other Secured Partybut shall have no obligation, to assert make test verifications of the accounts receivable in any claim or defense manner and through any medium that it considers advisable, and the Company agrees to furnish all such assistance and information as the Collateral Agent may reasonably require in connection therewith. The Company at its expense will cause independent certified public accountants satisfactory to the invalidity or unenforceability Collateral Agent to prepare in connection with any annual audit of the Company and to furnish to the Collateral Agent at any time and from time to time (but no more frequently than once in any six-month period) promptly upon the Guaranteed Obligations; or
Collateral Agent's request the following reports: (i) any other circumstance reconciliation of all accounts receivable, (including any statute ii) an aging of limitationsall accounts receivable, (iii) or any existence trial balance, and (iv) a test verification of or reliance on any representation by any such accounts receivable as the Collateral Agent may request.
(e) The security interest granted to the Collateral Agent for the benefit of the Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligated Party or any other guarantor or surety, other than all Guaranteed Obligations having been Paid Parties shall continue in Fullfull force and effect until terminated in accordance with Section 15 of the Security Agreement.
Appears in 1 contract
Rights of the Secured Parties. The Guarantor guarantees that (a) If an Event of Default shall occur and be continuing and the Guaranteed Obligations will be paid strictly Lender shall (unless such Event of Default is an Event of Default specified in accordance with the terms Sections 8.4 or 8.5 of the Facility DocumentsLoan Agreement, regardless in which case no such notice need be given) have given notice of its intent to exercise its rights hereunder to the Pledgor, then:
(i) all rights of the Pledgor (A) to exercise or refrain from exercising the voting and other consensual rights that they would otherwise be entitled to exercise pursuant to Section 6 shall, upon written notice to the Pledgor by the Lender, cease and (B) to receive the dividends, distributions and interest payments that they would otherwise be authorized to receive and retain pursuant to Section 6 shall automatically cease; (ii) all dividends, distributions and interest payments that are received by the Pledgor contrary to the provisions of subsection (i) shall be received in trust for the Lender, on behalf of the Secured Parties, shall be segregated from other property and funds of the Pledgor and shall be forthwith paid over to the Lender, on behalf of the Secured Parties, in the same form as so received (with any necessary endorsement); (iii) the Lender shall have the right to receive any and all cash dividends, interest or other income paid in respect of the Pledged Securities and make application thereof to the Secured Obligations as provided in Section 2.4(b) of the Loan Agreement; and (iv) all shares of the Pledged Stock shall be registered in the name of the Lender or its nominee, and the Lender or its nominee may thereafter exercise: (A) all voting, corporate and other rights pertaining to such shares of the Pledged Stock at any meeting of shareholders of the Pledgor's Subsidiaries or otherwise; and (B) any and all rights of conversion, exchange, subscription and any other rights, privileges or options pertaining to such shares of the Pledged Stock as if the Lender was the absolute owner thereof (including the right to exchange at its discretion any and all of the Pledged Stock upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of the Pledgor's Subsidiaries, or upon the exercise by the Pledgor or the Lender, of any lawright, regulation privilege or order now option pertaining to such shares of the Pledged Stock, and in connection therewith, the right to deposit and deliver any and all of the Pledged Stock with any committee, depository, transfer agent, registrar or hereafter in effect in any jurisdiction affecting any of other designated agency upon such terms and conditions as it may reasonably determine), all without liability except to account for property actually received by it, but the Lender shall have no duty to the Pledgor to exercise any such right, privilege or the option and shall not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Lender hereunder shall not be conditioned or contingent upon the pursuit by the Lender of any right or remedy against the Pledgor or against any other Person which may be or become liable in respect of all or any part of the Secured Party Obligations or against any collateral security therefor, guarantee therefor or right of offset with respect thereto. The liabilities and obligations No Lender-Related Person shall be liable for any failure to demand, collect or realize upon all or any part of the Guarantor Collateral or for any delay in doing so (except as finally determined by a court of competent jurisdiction to have arisen solely from the gross negligence or willful misconduct of any Lender-Related Person), nor shall the Lender be under any obligation to sell or in respect otherwise dispose of this Guaranty are independent any Collateral upon the request of the Guaranteed Obligations Pledgor or any other liabilities Person or obligations of to take any other obligor action whatsoever with regard to the Collateral or any part thereof.
(c) The Pledgor hereby irrevocably appoints the Lender the Pledgor's attorney-in-fact, with full authority in the place and stead of the Pledgor and in the name of the Pledgor or otherwise, upon the occurrence and during the continuation of an Event of Default to take any action and to execute any instrument that the Lender may deem necessary or advisable to accomplish the purposes of this Agreement, including:
(i) to ask for, demand, collect, ▇▇▇ for, recover, compromise, receive and give acquittances and receipts for moneys due and to become due under or in respect of the Facility Documents (each, individually, an “Obligated Party” and collectively, “Obligated Parties”); and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Obligated Party or whether the Borrower or other Obligated Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute, and unconditional irrespective of, and the Guarantor hereby irrevocably waives (to the extent permitted by applicable law), any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Facility Document or any agreement or instrument relating thereto, or any present or future law, regulation or order of any jurisdiction (whether of right or in fact) or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Facility Document or the Obligations.
(b) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other liabilities or obligations of any other Obligated Party under or in respect of the Facility Documents, or any other amendment or waiver of or any consent to departure from any Facility Document, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to the BorrowerPledged Securities;
(cii) to receive, endorse and collect any takingdrafts or other instruments, exchange, release documents and chattel paper in connection with clause (i) above; and
(iii) to file any claims or non-perfection of take any Collateral action or institute any other collateral, proceedings that the Lender may deem necessary or any taking, release, amendment or waiver of, or consent desirable to departure from, any other agreement, for all or any enforce compliance with the rights of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other liabilities or obligations of any Obligated Party under the Facility Documents or any other assets of any Obligated Party or any of its Subsidiaries;
(e) any change, restructuring, or termination of the corporate or legal structure or existence of any Obligated Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligated Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligated Party now or hereafter known to each Secured Party (the Guarantor waiving any duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other guarantor or surety Lender with respect to the Guaranteed Obligations;
(h) any right or power of any third party, individually or in the name of the Borrower, any Obligated Party, the Administrative Agent or any other Secured Party, to assert any claim or defense as to the invalidity or unenforceability of any the Guaranteed Obligations; or
(i) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligated Party or any other guarantor or surety, other than all Guaranteed Obligations having been Paid in FullPledged Securities.
Appears in 1 contract
Rights of the Secured Parties. The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Facility Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Limitations on Secured Party with respect theretoParties' -------------------------------------------------------------- Obligations. The liabilities and obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other liabilities or obligations of any other obligor under or in respect of the Facility Documents (each, individually, an “Obligated Party” and collectively, “Obligated Parties”); and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Obligated Party or whether the Borrower or other Obligated Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute, and unconditional irrespective of, and the Guarantor hereby irrevocably waives (to the extent permitted by applicable law), any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:-----------
(a) It is expressly agreed by the Grantor that, anything herein to the contrary notwithstanding, the Grantor shall remain liable to observe and perform all the conditions, duties and obligations to be observed and performed by it relating to the Collateral, and the Grantor shall perform all of its duties and obligations thereunder, all in accordance with and pursuant to the terms and provisions relating thereto. Neither the Collateral Agent nor any lack other Secured Party shall have any obligation or liability under any instrument, agreement, contract or other document by reason of validity or enforceability arising out of this Agreement or the granting of a security interest in any instrument, agreement, contract or other document to the Collateral Agent on behalf and for the ratable benefit of the Secured Parties of a security interest therein or the receipt by the Collateral Agent or any other Secured Party of any Facility Document payment relating to any of the foregoing pursuant hereto, nor shall the Collateral Agent or any agreement other Secured Party be required or instrument relating theretoobligated in any manner to perform or fulfill any of the obligations of the Grantor thereunder, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party thereunder, or to present or future lawfile any claim, regulation or order to take any action to collect or enforce any performance or the payment of any jurisdiction (whether of right amounts which may have been assigned to it or in fact) to which it may be entitled at any time or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Facility Document or the Obligationstimes.
(b) Subject to the terms of this Agreement, the Collateral Agent authorizes the Grantor to collect all sums due or to become due (including, without limitation, Proceeds) in respect of any change Collateral ("Collateral Payments"), provided that such collection is performed in the time, a prudent and businesslike manner, and the Collateral Agent may, upon the occurrence and during the continuance of any Default or place Event of Default and without notice, limit or terminate said authority at any time. If required by the Collateral Agent at any time during the continuance of any Default or Event of Default, any Collateral Payments, when first collected by the Grantor shall be promptly delivered by the Grantor to the Collateral Agent in precisely the form received (with all necessary indorsements), and until so turned over shall be deemed to be held in trust by the Grantor for and as the Collateral Agent's property, for the benefit of the Secured Parties, and shall not be commingled with the Grantor's other funds or properties. Such Collateral Payments, when so delivered to the Collateral Agent, shall continue to be collateral security for all of the Secured Obligations and shall not constitute payment of, or in any other term of, thereof until applied as hereinafter provided. The Collateral Agent shall upon the request of the Required Lenders apply all or a part of the funds so delivered to the principal of and/or interest on any of the Guaranteed Secured Obligations or any other liabilities or obligations in accordance with the provisions of any other Obligated Party under or in respect of the Facility Documents, or any other amendment or waiver of or any consent to departure from any Facility Document, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower;Section 17(h) hereof.
(c) The Collateral Agent may at any takingtime, exchange, release or non-perfection upon the occurrence and during the continuance of any Default or Event of Default, notify any party that is or might become obligated to make any Collateral or any other collateralPayment that the Collateral and the right, or any taking, release, amendment or waiver of, or consent title and interest of the Grantor in and under the Collateral have been assigned to departure from, any other agreementthe Collateral Agent, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other liabilities or obligations of any Obligated Party under the Facility Documents or any other assets of any Obligated Party or any of its Subsidiaries;
(e) any change, restructuring, or termination of the corporate or legal structure or existence of any Obligated Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligated Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligated Party now or hereafter known to each Secured Party (the Guarantor waiving any duty on the part benefit of the Secured Parties to disclose Parties, and that any or all of such information);
(g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other guarantor or surety with respect Collateral Payments shall be made directly to the Guaranteed Obligations;
(h) any right Collateral Agent or power its designee. Upon the request of any third partythe Collateral Agent, individually the Grantor will so notify such parties. Upon the occurrence and during the continuance of a Default or an Event of Default, the Collateral Agent may in its own name or in the name of the Borrower, any Obligated Party, the Administrative Agent or any other Secured Party, others communicate with all such parties to assert any claim or defense as verify with such parties to the invalidity or unenforceability Collateral Agent's satisfaction the existence, amount and terms of any the Guaranteed Obligations; or
(i) such obligation in respect of any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligated Party or any other guarantor or surety, other than all Guaranteed Obligations having been Paid in FullCollateral Payment.
Appears in 1 contract
Sources: Security and Collateral Agency Agreement (Homeside Lending Inc)
Rights of the Secured Parties. The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Facility DocumentsLIMITATIONS ON SECURED PARTIES' OBLIGATIONS. With respect to Accounts, regardless of any lawContracts, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. The liabilities Chattel Paper and obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other liabilities or obligations of any other obligor under or in respect of the Facility Documents (each, individually, an “Obligated Party” and collectively, “Obligated Parties”); and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Obligated Party or whether the Borrower or other Obligated Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, absolute, and unconditional irrespective of, and the Guarantor hereby irrevocably waives (to the extent permitted by applicable law), any defenses it may now have or hereafter acquire in any way relating to, any or all of the followingInstruments Constituting Collateral:
(a) It is expressly agreed by each Grantor that, anything herein to the contrary notwithstanding, such Grantor shall remain liable under each of the Contracts to observe and perform all the conditions and obligations to be observed and performed by it thereunder and such Grantor shall perform all of its duties and obligations thereunder, all in accordance with and pursuant to the terms and provisions of each such Contract. Neither the Agent nor any lack Lender shall have any obligation or liability under any Contract by reason of validity or enforceability arising out of this Agreement or the granting of a security interest in any contract to the Agent on behalf and for the ratable benefit of and the Secured Parties of a security interest therein or the receipt by the Agent or any Lender of any Facility Document payment relating to any Contract pursuant hereto, nor shall the Agent or any agreement Lender be required or instrument relating theretoobligated in any manner to perform or fulfill any of the obligations of such Grantor under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract, or to present or future lawfile any claim, regulation or order to take any action to collect or enforce any performance or the payment of any jurisdiction (whether of right amounts which may have been assigned to it or in fact) to which it may be entitled at any time or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Facility Document or the Obligationstimes.
(b) any change The Agent authorizes each Grantor to collect its Accounts, Chattel Paper and Instruments that are Collateral, provided that such collection is performed in the time, a prudent and businesslike manner, and the Agent may, upon the occurrence and during the continuance of any Event of Default and without notice, limit or place terminate said authority at any time. If required by the Agent at any time during the continuance of any Event of Default, any Proceeds, when first collected by such Grantor, received in payment of, of any such Account or in payment for any of its Inventory or on account of any of its Contracts, shall be promptly deposited by such Grantor in precisely the form received (with all necessary indorsements) in a special bank account maintained by the Agent and subject to withdrawal only by the Agent, as hereinafter provided, and until so turned over shall be deemed to be held in trust by such Grantor for and as the Agent's property and shall not be commingled with such Grantor's other term offunds or properties. Such Proceeds, when deposited, shall continue to be collateral security for all of the Obligations and shall not constitute payment thereof until applied as hereinafter provided. The Agent shall upon the request of the Majority Lenders apply all or a part of the funds on deposit in said special account to the principal of or interest on or both in respect of any of the Guaranteed Obligations or in accordance with the provisions of Section 8(d) hereof and any other liabilities or obligations part of any other Obligated Party under or in respect such funds which the Majority Lenders elect not so to apply and deem not required as collateral security for the Obligations shall be paid over from time to time by the Agent to such Grantor. If an Event of Default has occurred and is continuing, at the request of the Facility Documents, or any other amendment or waiver of or any consent to departure from any Facility Document, including any increase in the Guaranteed Obligations resulting from the extension of additional credit Agent such Grantor shall deliver to the Borrower;Agent all original and other documents evidencing, and relating to, the sale and delivery of such Inventory or the performance of labor or service which created such Accounts, including, without limitation, all original orders, invoices and shipping receipts.
(c) The Agent may at any takingtime, exchange, release or non-perfection upon the occurrence and during the continuance of any Collateral or any other collateral, or any taking, release, amendment or waiver of, or consent to departure from, any other agreement, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other liabilities or obligations of any Obligated Party under the Facility Documents or any other assets of any Obligated Party or any of its Subsidiaries;
(e) any change, restructuring, or termination of the corporate or legal structure or existence of any Obligated Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligated Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligated Party now or hereafter known to each Secured Party (the Guarantor waiving any duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver any other agreement or the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations;
(h) any right or power of any third party, individually or in the name of the Borrower, any Obligated Party, the Administrative Agent or any other Secured Party, to assert any claim or defense as to the invalidity or unenforceability of any the Guaranteed Obligations; Default or
(i) any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligated Party or any other guarantor or surety, other than all Guaranteed Obligations having been Paid in Full.
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