Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following): (a) Buyer’s assertion or non—assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—called self—help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documents; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Repurchase Documents or the Guarantor Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets or the other Purchased Assets) is illegal, uncollectible or unenforceable or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 2 contracts
Sources: Limited Guaranty (NorthStar Real Estate Income Trust, Inc.), Limited Guaranty (Northstar Realty Finance Corp.)
Validity of Guaranty. The validity of this Guaranty, the obligations of the Guarantor hereunder and Buyerthe Administrative Agent’s and the Lenders’ rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action event or omission condition of any kind whatsoever, including, without limitation, any of the following (and the Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims ) which the Guarantor might have now or hereafter as a result of or in connection with any of the following):
): (a) Buyer’s the assertion or non—–assertion by the Administrative Agent or election the Lenders of any of the rights or remedies available to Buyer the Administrative Agent or the Lenders pursuant to the provisions of the Repurchase Credit Documents, the Mortgage Loan Documents or pursuant to any Requirements Requirement of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other PersonLaw; (b) the waiver by Buyer the Administrative Agent or the Lenders of, or the failure of Buyer the Administrative Agent or the Lenders to enforce, or the lack of diligence by Buyer the Administrative Agent or the Lenders in connection with, the enforcement of any of its rights or remedies under the Repurchase Credit Documents, the Mortgage Loan Documents, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities; (c) the granting by Buyer the Administrative Agent or the Lenders of (or failure by Buyer the Administrative Agent or the Lenders to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer the Administrative Agent or the Lenders of or failure to exercise any so—–called self—–help remedies; (e) any occurrenceact, condition, circumstance event, action omission or omission condition that might in any manner or to any extent vary, alter, increase, extend or continue the risk to the Guarantor or might otherwise operate as a discharge or release of the Guarantor under Requirements of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Guarantee Liabilities, or any part thereof, of Sellerthe Borrowers, the Guarantor, the Pledgor, any other Credit Party, any co—Guarantor –guarantors or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Guarantee Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, discharge or limitation of the liability or insolvency of Sellerthe Borrowers, any the Guarantor, the Pledgor, any Underlying other Credit Party, any Obligor or any Person liable for or obligated on the Guarantor Guarantee Liabilities, or any of their estates in bankruptcy bankruptcy, resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documentsthereof; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Guarantee Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Guarantee Liabilities, the Repurchase Credit Documents, the Purchased AssetsCollateral, the Pledged Collateral, any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Sellerthe Borrowers, the Pledgor, the Underlying other Credit Parties, the Obligors or any other Person under the Repurchase Credit Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Guarantee Liabilities) or of any the Guarantor under this Guaranty and/or any failure of Buyer the Administrative Agent or the Lenders to notify any the Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Guarantee Liabilities or any part thereof owing or payable by Seller the Borrowers or any other Person under the Repurchase Credit Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Guarantee Liabilities) of Seller the Borrowers or any other Person against Buyer the Administrative Agent or the Lenders or against payment of the Guarantor Guarantee Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Guarantee Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property Property for the Guarantor Guarantee Liabilities in favor of Buyerthe Administrative Agent, any other Indemnified Person the Lenders or any other Person specified in the Repurchase Credit Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or propertyProperty; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property Property of Sellerthe Borrowers, Pledgor the Pledgor, the Guarantor or any Guarantorother Credit Party, or any changes in the shareholders, partners or members of Sellerthe Borrowers, Pledgor the Pledgor, the Guarantor or any Guarantorother Credit Party, or any reorganization, consolidation or merger of Sellerthe Borrowers, Pledgor the Pledgor, the Guarantor or any Guarantorother Credit Party; (n) the invalidity, illegality, insufficiency illegality or unenforceability of all or any part of the Guarantor Guarantee Liabilities, the Repurchase Credit Documents, the Purchased AssetsCollateral, the Pledged Collateral, any collateral, security or property Property for the Repurchase Documents Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Guarantee Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligationslaws, (2) the act of creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral, the Repurchase Documents, any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Credit Documents or otherwise creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities acted in excess of their authority, (4) Sellerthe Borrowers, the Pledgor, any Underlying other Credit Party, any Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Guarantee Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities (or the execution, delivery and performance of any Repurchase Credit Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchase ItemsCollateral, the Pledged Collateral, any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities or executed in connection with the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, or given to secure the repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets or the other Purchased AssetsCollateral) is illegal, uncollectible or unenforceable unenforceable, or (6) any Mortgage Loan Document, any Repurchase Credit Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Guarantee Liabilities; (pq) the failure of Buyer the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased AssetsCollateral, the Pledged Collateral or any other collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer the Administrative Agent or the Lenders (1) to take or prosecute any action for the collection of any of the Guarantor Guarantee Liabilities, the Pledged Collateral, any Purchased Asset Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased AssetCollateral, the Pledged Collateral or any security, collateral or property Property for the Guaranty or Guarantor Liabilities Guarantee Liabilities, or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Guarantee Liabilities; (qr) the existence, value, or condition of fact that the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property Property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Guarantee Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal unenforceable or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoingLien; (rs) any payment by Seller the Borrowers or any other Person to Buyer the Administrative Agent or the Lenders is held to constitute a preference under Insolvency Laws, or for any reason Buyer is the Administrative Agent or the Lenders are required to refund such payment or pay such amount to any such Seller Borrower or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.044, result in the full or partial, legal or equitable, partial release, discharge, defense of guaranty or surety discharge or relief of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that the Guarantor will be required to pay the Guarantor Guarantee Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices the Guarantor, it being the unambiguous and unequivocal intention of the Guarantor that the Guarantor shall be obligated to pay the Guarantor Guarantee Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Guarantee Liabilities.
Appears in 1 contract
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor each of the Guarantors hereunder and Buyerthe Purchaser’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action event or omission condition of any kind whatsoever, including, without limitation, any of the following (and Guarantor each of the Guarantors hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims ) which Guarantor the Guarantors might have now or hereafter as a result of or in connection with any of the following):
): (a) Buyer’s the assertion or non—–assertion or election by the Purchaser of any of the rights or remedies available to Buyer the Purchaser pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other PersonApplicable Law; (b) the waiver by Buyer the Purchaser of, or the failure of Buyer the Purchaser to enforce, or the lack of diligence by Buyer the Purchaser in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, Items or the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor LiabilitiesCollateral; (c) the granting by Buyer the Purchaser of (or failure by Buyer the Purchaser to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer the Purchaser of or failure to exercise any so—–called self—–help remedies; (e) any occurrenceact, condition, circumstance event, action omission or omission condition that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor any of the Guarantors or might otherwise operate as a discharge or release of Guarantor any of the Guarantors under Requirements of Applicable Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Guarantee Liabilities, or any part thereof, of the Seller, Guarantorany of the Guarantors, the Pledgor, any co—Guarantor –guarantors or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Guarantee Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, discharge or limitation of the liability or insolvency of the Seller, any Guarantorof the Guarantors, the Pledgor, any Underlying Obligor Borrower or any Person liable for or obligated on the Guarantor Guarantee Liabilities, or any of their estates in bankruptcy bankruptcy, resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documentsthereof; (h) any present or future Requirements of Applicable Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Guarantee Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Guarantee Liabilities, the Repurchase Documents, the Purchased AssetsItems, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of the Seller, the Pledgor, the Underlying Obligors Borrowers or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Guarantee Liabilities) or of any Guarantor the Guarantors under this Guaranty and/or any failure of Buyer the Purchaser to notify any Guarantor of the Guarantors of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Guarantee Liabilities or any part thereof owing or payable by the Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Guarantee Liabilities) of the Seller or any other Person against Buyer the Purchaser or against payment of the Guarantor Guarantee Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Guarantee Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property Property for the Guarantor Guarantee Liabilities in favor of Buyerthe Purchaser, any other Indemnified Person Affected Party or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or propertyProperty; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property Property of the Seller, the Pledgor or any Guarantorof the Guarantors, or any changes in the shareholders, partners or members of the Seller, the Pledgor or any Guarantorof the Guarantors, or any reorganization, consolidation or merger of the Seller, the Pledgor or any Guarantorof the Guarantors; (n) the invalidity, illegality, insufficiency illegality or unenforceability of all or any part of the Guarantor Guarantee Liabilities, the Repurchase Documents, the Purchased AssetsItems, the Pledged Collateral, any collateral, security or property for the Repurchase Documents or the Guarantor Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Guarantee Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Applicable Law or violates usury laws or exceeds the Repurchase Obligationslaws, (2) the act of creating the Guarantor Guarantee Liabilities, the Assets, the Purchased Mortgage Assets, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for the Guaranty Collateral or the Guarantor Liabilities other Purchased Items or any part of the foregoing thereof is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Guarantee Liabilities, the Assets, the Purchased Mortgage Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities other Purchased Items acted in excess of their authority, (4) the Seller, Pledgor, any Underlying Obligor Borrower or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Guarantee Liabilities wholly or partially uncollectibleuncollectible from the Seller, (5) the creation, performance or repayment of the Guarantor Guarantee Liabilities, the Assets, the Purchased Mortgage Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities other Purchased Items (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchase Items, the Pledged Collateral, any collateral, security or property for the Guaranty Collateral or the Guarantor Liabilities Purchased Items or executed in connection with the Guarantor Guarantee Liabilities, the Assets, the Purchased Mortgage Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor LiabilitiesPurchased Items, or given to secure the repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets or the other Purchased AssetsItems) is illegal, uncollectible or unenforceable unenforceable, or (6) any the Mortgage Loan Document, any Documents or Repurchase Document or any other document, agreement or instrument has Documents have been forged or otherwise is are irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property Property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Guarantee Liabilities; (pq) the failure of Buyer the Purchaser or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased AssetsItems, the Pledged Collateral or any other collateral, security or property for the Guaranty or the Guarantor LiabilitiesProperty, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer the Purchaser (1) to take or prosecute any action for the collection of any of the Guarantor Guarantee Liabilities, the Pledged Collateral, Collateral or any Purchased Asset or any collateral, security or property for the Guaranty or the Guarantor LiabilitiesItem, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased AssetItem, the Pledged Collateral or any security, collateral or property Property for the Guaranty or Guarantor Liabilities Guarantee Liabilities, or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Guarantee Liabilities; (qr) the existence, value, or condition of fact that the Purchased AssetsItems, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property Property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Guarantee Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal unenforceable or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoingLien; (rs) any payment by the Seller or any other Person to Buyer the Purchaser is held to constitute a preference under Insolvency Laws, or for any reason Buyer the Purchaser is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.044, result in the full or partial, legal or equitable, partial release, discharge, defense of guaranty or surety discharge or relief of Guarantor any of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor any of the Guarantors will be required to pay the Guarantor Guarantee Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantorany of the Guarantors, it being the unambiguous and unequivocal intention of Guarantor the Guarantors that Guarantor the Guarantors shall be obligated to pay the Guarantor Guarantee Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Guarantee Liabilities.
Appears in 1 contract
Sources: Guaranty Agreement (Municipal Mortgage & Equity LLC)
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and for the benefit of Buyer and Buyer’s successors and/or permitted assigns), Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to noticenotice except any applicable notices expressly required to be given under this Guaranty to Guarantor), defenses (legal and equitable) (other than indefeasible payment in full or performance in full, in each case, with respect to the obligation in question), set-set off, counterclaims (other than any compulsory counterclaim) and cross-claims (other than any compulsory cross-claim) which the Guarantor might have now or hereafter have to the validity of this Guaranty and the obligations of the Guarantor hereunder as a result of or in connection with any of the following):
, but such waiver shall not prevent Guarantor from asserting against Buyer in a separate action any claim, action, cause of action or demand that Guarantor might have, whether or not arising under this Guaranty: (a) Buyer’s assertion or non—–assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of timetime in connection with the terms and conditions of the Repurchase Documents (other than the grant of any of the foregoing by Buyer pursuant to this Guaranty); (d) the exercise by Buyer of or failure to exercise any so—–called self—–help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—–Guarantor or any other Person (other than any written release, written discharge or written accord and satisfaction where such release, discharge or accord and CHAR1\1715883v11 satisfaction was explicitly agreed to, and entered into by Buyer with or expressly for the benefit of Guarantor or as otherwise expressly required under the Repurchase Documents with respect to any such Person or the Guarantor Liabilities) now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any other Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction relating to such bankruptcy or insolvency or Seller, Pledgor Pledgor, Guarantor or any other Person liable for or obligated on the Guarantor Liabilities ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documents; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereofthereof other than any court order by a court of competent jurisdiction with respect thereto; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoingforegoing (except for any notices required to be given under the Repurchase Documents to Guarantor); (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, non-compulsory counterclaim, cross-claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwiseotherwise but such waiver shall not prevent Seller, Pledgor or Guarantor from asserting against Buyer in a separate action any claim, action, cause of action or demand that Seller, Pledgor or Guarantor might have, whether or not arising under any of the Repurchase Documents; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor or Guarantor, or any Division of Seller, Pledgor or Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Repurchase Documents or the Guarantor Liabilities, the Mortgage Loan Documents or any CHAR1\1715883v11 document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defensesdefenses (other than after the Closing Date and to the extent applicable, the indefeasible payment in full or performance in full, in each case, with respect to the obligation in question), claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase ItemsPurchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets or the other Purchased Assets) is illegal, uncollectible or unenforceable or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral or any security, collateral or property for the Guaranty or Guarantor Liabilities Liabilities, or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any CHAR1\1715883v11 other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any benefit of the statute of limitations affecting Guarantor’s liability under this Guaranty or the enforcement thereof and any act which may defer, delay or accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event (other than after the Closing Date and to the extent applicable, the indefeasible payment in full or performance in full, in each case, with respect to the obligation in question), action or other circumstance that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Sources: Guaranty and Subordination Agreement (Cim Real Estate Finance Trust, Inc.)
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s 's rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-offset‑off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following):
(a) Buyer’s 's assertion or non—–assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s 's rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—–called self—–help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—–Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documents; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Repurchase Documents or the Guarantor Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets or the other Purchased Assets) is illegal, uncollectible or unenforceable or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s 's actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Validity of Guaranty. The validity of this Guaranty, the obligations of the Parent Guarantor hereunder and Buyerthe Deal Agent’s, the Purchaser’s and the other Secured Parties’ rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action event or omission condition of any kind whatsoever, including, without limitation, any of the following (and the Parent Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims ) which the Parent Guarantor might have now or hereafter as a result of or in connection with any of the following):
): (a) Buyer’s the assertion or non—–assertion by the Deal Agent, the Purchaser or election the other Secured Parties of any of the rights or remedies available to Buyer the Deal Agent, the Purchaser or the other Secured Parties pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other PersonApplicable Law; (b) the waiver by Buyer the Deal Agent, the Purchaser or the other Secured Parties of, or the failure of Buyer the Deal Agent, the Purchaser or the other Secured Parties to enforce, or the lack of diligence by Buyer the Deal Agent, the Purchaser or the other Secured Parties in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities; (c) the granting by Buyer the Deal Agent, the Purchaser or the other Secured Parties of (or failure by Buyer the Deal Agent, the Purchaser or the other Secured Parties to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer the Deal Agent, the Purchaser or the other Secured Parties of or failure to exercise any so—–called self—–help remedies; (e) any occurrenceact, condition, circumstance event, action omission or omission condition that might in any manner or to any extent vary, alter, increase, extend or continue the risk to the Parent Guarantor or might otherwise operate as a discharge or release of the Parent Guarantor under Requirements of Applicable Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Guarantee Liabilities, or any part thereof, of the Seller, the Parent Guarantor, the Pledgor, the Limited Guarantor, the Parent, any other Repurchase Party, any co—Guarantor –guarantors or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Guarantee Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, discharge or limitation of the liability or insolvency of the Seller, any the Parent Guarantor, the Pledgor, the Limited Guarantor, the Parent, any Underlying Obligor other Repurchase Party, any Borrower or any Person liable for or obligated on the Guarantor Guarantee Liabilities, or any of their estates in bankruptcy bankruptcy, resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documentsthereof; (h) any present or future Requirements of Applicable Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Guarantee Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Guarantee Liabilities, the Repurchase Documents, the Purchased AssetsItems, the Pledged Collateral, any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of the Seller, the Pledgor, the Underlying Obligors Limited Guarantor, the Parent, the other Repurchase Parties, the Borrowers or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Guarantee Liabilities) or of any the Parent Guarantor under this Guaranty and/or any failure of Buyer the Deal Agent, the Purchaser or the other Secured Parties to notify any the Parent Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Guarantee Liabilities or any part thereof owing or payable by the Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Guarantee Liabilities) of the Seller or any other Person against Buyer the Deal Agent, the Purchaser or the other Secured Parties or against payment of the Guarantor Guarantee Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Guarantee Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for Property securing the Guarantor Guarantee Liabilities in favor of Buyerthe Deal Agent, the Purchaser, the other Secured Parties, any other Indemnified Person Affected Party or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or propertyProperty; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property Property of the Seller, Pledgor the Pledgor, the Limited Guarantor, the Parent Guarantor, the Parent or any Guarantorother Repurchase Party, or any changes in the shareholders, partners or members of the Seller, Pledgor the Pledgor, the Limited Guarantor, the Parent Guarantor, the Parent or any Guarantorother Repurchase Party, or any reorganization, consolidation or merger of the Seller, Pledgor the Pledgor, the Limited Guarantor, the Parent Guarantor, the Parent or any Guarantorother Repurchase Party; (n) the invalidity, illegality, insufficiency illegality or unenforceability of all or any part of the Guarantor Guarantee Liabilities, the Repurchase Documents, the Purchased AssetsItems, the Pledged Collateral, any collateral, security or property for Property securing the Repurchase Documents Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Guarantee Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Applicable Law or violates usury laws or exceeds the Repurchase Obligationslaws, (2) the act of creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities acted in excess of their authority, (4) the Seller, the Pledgor, the Limited Guarantor, the Parent, any Underlying Obligor other Repurchase Party, any Borrower or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Guarantee Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchase Items, the Pledged Collateral, any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities or executed in connection with the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, or given to secure the repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets or the other Purchased AssetsItems) is illegal, uncollectible or unenforceable unenforceable, or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property Property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Guarantee Liabilities; (pq) the failure of Buyer the Deal Agent, the Purchaser, the other Secured Parties or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased AssetsItems, the Pledged Collateral or any other collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer the Deal Agent, the Purchaser or the other Secured Parties (1) to take or prosecute any action for the collection of any of the Guarantor Guarantee Liabilities, the Pledged Collateral, any Purchased Asset Item or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased AssetItem, the Pledged Collateral or any security, collateral or property for Property securing the Guaranty or Guarantor Liabilities Guarantee Liabilities, or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.evide
Appears in 1 contract
Sources: Back Up Guaranty Agreement (Municipal Mortgage & Equity LLC)
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following):
(a) Buyer’s assertion or non—-assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents or pursuant to any Requirements Requirement of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor Seller or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—-called self—-help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements Requirement A&R Limited Guaranty (Citibank and Northstar) of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor Seller or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Transaction Documents; (h) any present or future Requirements Requirement of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Purchased Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Transaction Documents or Mortgage Purchased Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Transaction Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person Parties or any other Person specified in the Repurchase Transaction Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor Seller or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor Seller or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor Seller or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Repurchase Transaction Documents or the Guarantor Liabilities, the Mortgage Purchased Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements Requirement of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the AssetsPurchased Loans, the Purchased Assets, the Pledged Collateral, the Repurchase Transaction Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Purchased Loan Documents or Repurchase Transaction Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in A&R Limited Guaranty (Citibank and Northstar) excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Transaction Document, Mortgage Purchased Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, Loans any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets Liabilities or the other Purchased AssetsLoans) is illegal, uncollectible or unenforceable or (6) any Mortgage Purchased Loan Document, any Repurchase Transaction Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral Loans or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset Loan or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral Loan or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien securing the Repurchase Transaction Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly A&R Limited Guaranty (Citibank and Northstar) or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Sources: Limited Guaranty (Colony NorthStar Credit Real Estate, Inc.)
Validity of Guaranty. The validity of this Guaranty, the and Guarantor’s obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing hereunder, shall in no way not be terminated, abated, reduced, released, modifiedimpaired, changed, compromised, discharged, diminished, affected, released or limited or impaired in any manner whatsoever by reason of (i) the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following):
(a) Buyer’s assertion or non—assertion or election failure to assert by Landlord against Tenant of any of the rights or remedies available to Buyer of Landlord pursuant to the provisions Lease or by law, (ii) any impairment, change, release or limitation of the Repurchase Documents, Obligations of the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor Lease or any other Person; remedy for me enforcement thereof, (biii) the waiver making of any assignment by Buyer ofTenant, with or without notice to Landlord, of its interest under the Lease (whether or not such assignment is permitted under the Lease and whether or not it is approved by Landlord), (iv) the sale or other transfer by Guarantor of any stock of Tenant or any change in the ownership or control of such stock of Tenant, or the failure (v) any impairment, change, release or limitation of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies Tenant’s Obligations under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, the Pledged Collateral Lease or any collateral, security or property for the Guaranty or the Guarantor Liabilities; otherwise by (cA) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—called self—help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements of Law; (f) any full or partial release or discharge of Tenant in any creditors’ proceedings, receivership, bankruptcy, insolvency, composition, dissolution, liquidation, reorganization, arrangement or accord and satisfaction with respect to adjustment or other proceedings, (B) any impairment, limitation or modification of the liability of Tenant or me estate of Tenant in receivership, bankruptcy, insolvency, composition, dissolution, liquidation, reorganization, arrangement or adjustment, or of any remedy for the Guarantor Liabilitiesenforcement of Tenant’s liability under the Lease, resulting from the operation of any present or any part thereof, future provision of Seller, Guarantor, Pledgor, any co—Guarantor the Bankruptcy Code or any other Person now present or hereafter liable, whether directly future statute or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure from the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court or other tribunal or (C) the rejection or disaffirmance of the United States Lease or any state thereof or of Obligations thereunder in any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documents; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Repurchase Documents or the Guarantor Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets or the other Purchased Assets) is illegal, uncollectible or unenforceable or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilitiesproceedings.
Appears in 1 contract
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following):
(a) Buyer’s assertion or non—-assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents or pursuant to any Requirements Requirement of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor Seller or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—-called self—-help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements Requirement of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—Guarantor or any other 11 Limited Guaranty (Citibank and Northstar) Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor Seller or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Transaction Documents; (h) any present or future Requirements Requirement of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Purchased Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Transaction Documents or Mortgage Purchased Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Transaction Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person Parties or any other Person specified in the Repurchase Transaction Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor Seller or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor Seller or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor Seller or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Repurchase Transaction Documents or the Guarantor Liabilities, the Mortgage Purchased Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements Requirement of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the AssetsPurchased Loans, the Purchased Assets, the Pledged Collateral, the Repurchase Transaction Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇v▇▇▇▇, (3) the officers or representatives executing the Mortgage Purchased Loan Documents or Repurchase Transaction Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any 12 Limited Guaranty (Citibank and Northstar) Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Transaction Document, Mortgage Purchased Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, Loans any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets Liabilities or the other Purchased AssetsLoans) is illegal, uncollectible or unenforceable or (6) any Mortgage Purchased Loan Document, any Repurchase Transaction Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral Loans or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset Loan or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral Loan or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien securing the Repurchase Transaction Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or 13 Limited Guaranty (Citibank and Northstar) uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Sources: Limited Guaranty (NorthStar Real Estate Income II, Inc.)
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following):
(a) Buyer’s assertion or non—–assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—–called self—–help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—–Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documents; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Repurchase Documents or the Guarantor Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇v▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets or the other Purchased Assets) is illegal, uncollectible or unenforceable or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; , the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given,
(p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, Assets created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following):
(a) Buyer’s assertion or non—-assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents or pursuant to any Requirements Requirement of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor Seller or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—-called self—-help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements Requirement of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor Seller or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Transaction Documents; (h) any present or future Requirements Requirement of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Purchased Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Transaction Documents or Mortgage Purchased Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Transaction Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person Parties or any other Person specified in the Repurchase Transaction Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor Seller or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor Seller or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor Seller or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Repurchase Transaction Documents or the Guarantor Liabilities, the Mortgage Purchased Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements Requirement of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the AssetsPurchased Loans, the Purchased Assets, the Pledged Collateral, the Repurchase Transaction Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Purchased Loan Documents or Repurchase Transaction Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Transaction Document, Mortgage Purchased Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, Loans any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets Liabilities or the other Purchased AssetsLoans) is illegal, uncollectible or unenforceable or (6) any Mortgage Purchased Loan Document, any Repurchase Transaction Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral Loans or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset Loan or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral Loan or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien securing the Repurchase Transaction Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Sources: Limited Guaranty (NorthStar Real Estate Income Trust, Inc.)
Validity of Guaranty. The validity of this Guaranty, the obligations of the Guarantor hereunder and Buyerthe Administrative Agent’s and the Lenders’ rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action event or omission condition of any kind whatsoever, including, without limitation, any of the following (and the Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims ) which the Guarantor might have now or hereafter as a result of or in connection with any of the following):
): (a) Buyer’s the assertion or non—assertion by the Administrative Agent or election the Lenders of any of the rights or remedies available to Buyer the Administrative Agent or the Lenders pursuant to the provisions of the Repurchase Credit Documents, the Mortgage Loan Documents or pursuant to any Requirements Requirement of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other PersonLaw; (b) the waiver by Buyer the Administrative Agent or the Lenders of, or the failure of Buyer the Administrative Agent or the Lenders to enforce, or the lack of diligence by Buyer the Administrative Agent or the Lenders in connection with, the enforcement of any of its rights or remedies under the Repurchase Credit Documents, the Mortgage Loan Documents, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities; (c) the granting by Buyer the Administrative Agent or the Lenders of (or failure by Buyer the Administrative Agent or the Lenders to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer the Administrative Agent or the Lenders of or failure to exercise any so—called self—help remedies; (e) any occurrenceact, condition, circumstance event, action omission or omission condition that might in any manner or to any extent vary, alter, increase, extend or continue the risk to the Guarantor or might otherwise operate as a discharge or release of the Guarantor under Requirements of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Guarantee Liabilities, or any part thereof, of Sellerthe Borrowers, the Guarantor, the Pledgor, any other Credit Party, any co—Guarantor guarantors or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Guarantee Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, discharge or limitation of the liability or insolvency of Sellerthe Borrowers, any the Guarantor, the Pledgor, any Underlying other Credit Party, any Obligor or any Person liable for or obligated on the Guarantor Guarantee Liabilities, or any of their estates in bankruptcy bankruptcy, resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documentsthereof; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Guarantee Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Guarantee Liabilities, the Repurchase Credit Documents, the Purchased AssetsCollateral, the Pledged Collateral, any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Sellerthe Borrowers, the Pledgor, the Underlying other Credit Parties, the Obligors or any other Person under the Repurchase Credit Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Guarantee Liabilities) or of any the Guarantor under this Guaranty and/or any failure of Buyer the Administrative Agent or the Lenders to notify any the Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Guarantee Liabilities or any part thereof owing or payable by Seller the Borrowers or any other Person under the Repurchase Credit Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Guarantee Liabilities) of Seller the Borrowers or any other Person against Buyer the Administrative Agent or the Lenders or against payment of the Guarantor Guarantee Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Guarantee Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property Property for the Guarantor Guarantee Liabilities in favor of Buyerthe Administrative Agent, any other Indemnified Person the Lenders or any other Person specified in the Repurchase Credit Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or propertyProperty; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property Property of Sellerthe Borrowers, Pledgor the Pledgor, the Guarantor or any Guarantorother Credit Party, or any changes in the shareholders, partners or members of Sellerthe Borrowers, Pledgor the Pledgor, the Guarantor or any Guarantorother Credit Party, or any reorganization, consolidation or merger of Sellerthe Borrowers, Pledgor the Pledgor, the Guarantor or any Guarantorother Credit Party; (n) the invalidity, illegality, insufficiency illegality or unenforceability of all or any part of the Guarantor Guarantee Liabilities, the Repurchase Credit Documents, the Purchased AssetsCollateral, the Pledged Collateral, any collateral, security or property Property for the Repurchase Documents Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Guarantee Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligationslaws, (2) the act of creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral, the Repurchase Documents, any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Credit Documents or otherwise creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities acted in excess of their authority, (4) Sellerthe Borrowers, the Pledgor, any Underlying other Credit Party, any Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Guarantee Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities (or the execution, delivery and performance of any Repurchase Credit Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchase ItemsCollateral, the Pledged Collateral, any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities or executed in connection with the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, or given to secure the repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets or the other Purchased AssetsCollateral) is illegal, uncollectible or unenforceable unenforceable, or (6) any Mortgage Loan Document, any Repurchase Credit Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security or property Property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Guarantee Liabilities; (pq) the failure of Buyer the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased AssetsCollateral, the Pledged Collateral or any other collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer the Administrative Agent or the Lenders (1) to take or prosecute any action for the collection of any of the Guarantor Guarantee Liabilities, the Pledged Collateral, any Purchased Asset Collateral or any collateral, security or property Property for the Guaranty or the Guarantor Guarantee Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased AssetCollateral, the Pledged Collateral or any security, collateral or property Property for the Guaranty or Guarantor Liabilities Guarantee Liabilities, or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Guarantee Liabilities; (qr) the existence, value, or condition of fact that the Purchased AssetsCollateral, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property Property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Guarantee Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal unenforceable or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoingLien; (rs) any payment by Seller the Borrowers or any other Person to Buyer the Administrative Agent or the Lenders is held to constitute a preference under Insolvency Laws, or for any reason Buyer is the Administrative Agent or the Lenders are required to refund such payment or pay such amount to any such Seller Borrower or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.044, result in the full or partial, legal or equitable, partial release, discharge, defense of guaranty or surety discharge or relief of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that the Guarantor will be required to pay the Guarantor Guarantee Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices the Guarantor, it being the unambiguous and unequivocal intention of the Guarantor that the Guarantor shall be obligated to pay the Guarantor Guarantee Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Guarantee Liabilities.
Appears in 1 contract
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer▇▇▇▇▇’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and for the benefit of Buyer and ▇▇▇▇▇’s successors and/or permitted assigns), Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to noticenotice except any applicable notices expressly required to be given under this Guaranty to Guarantor), defenses (legal and equitable) (other than indefeasible payment in full or performance in full, in each case, with respect to the obligation in question), set-set off, counterclaims (other than any compulsory counterclaim) and cross-claims (other than any compulsory cross-claim) which the Guarantor might have now or hereafter have to the validity of this Guaranty and the obligations of the Guarantor hereunder as a result of or in connection with any of the following):, but such waiver shall not prevent Guarantor from asserting against Buyer in a separate action any claim, action, cause of action or demand that Guarantor might have, whether or not arising under this Guaranty:
(a) Buyer’s assertion or non—–assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other Person; ;
(b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of timetime in connection with the terms and conditions of the Repurchase Documents (other than the grant of any of the foregoing by Buyer pursuant to this Guaranty); (d) the exercise by Buyer of or failure to exercise any so—–called self—–help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—–Guarantor or any other Person (other than any written release, written discharge or written accord and satisfaction where such release, discharge or accord and satisfaction was explicitly agreed to, and entered into by Buyer with or expressly for the benefit of Guarantor or as otherwise expressly required under the Repurchase Documents with respect to any such Person or the Guarantor Liabilities) now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any other Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction relating to such bankruptcy or insolvency or Seller, Pledgor Pledgor, Guarantor or any other Person liable for or obligated on the Guarantor Liabilities ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documents; (h) any present or future Requirements of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereofthereof other than any court order by a court of competent jurisdiction with respect thereto; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoingforegoing (except for any notices required to be given under the Repurchase Documents to Guarantor); (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, non-compulsory counterclaim, cross-claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwiseotherwise but such waiver shall not prevent Seller, Pledgor or Guarantor from asserting against Buyer in a separate action any claim, action, cause of action or demand that Seller, Pledgor or Guarantor might have, whether or not arising under any of the Repurchase Documents; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor or Guarantor, or any Division of Seller, Pledgor or Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Documents, the Purchased Assets, the Pledged Collateral, any collateral, security or property for the Repurchase Documents or the Guarantor Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defensesdefenses (other than after the Closing Date and to the extent applicable, the indefeasible payment in full or performance in full, in each case, with respect to the obligation in question), claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase ItemsPurchased Assets, the Pledged Collateral, any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets or the other Purchased Assets) is illegal, uncollectible or unenforceable or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral or any security, collateral or property for the Guaranty or Guarantor Liabilities Liabilities, or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any benefit of the statute of limitations affecting Guarantor’s liability under this Guaranty or the enforcement thereof and any act which may defer, delay or accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event (other than after the Closing Date and to the extent applicable, the indefeasible payment in full or performance in full, in each case, with respect to the obligation in question), action or other circumstance that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Sources: Guaranty and Subordination Agreement (Cim Real Estate Finance Trust, Inc.)
Validity of Guaranty. The validity of this Guaranty, the obligations of Guarantor hereunder and Buyer’s rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action or omission of any kind whatsoever, including, without limitation, any of the following (and Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims which Guarantor might have now or hereafter as a result of or in connection with any of the following):
(a) Buyer’s assertion or non—-assertion or election of any of the rights or remedies available to Buyer pursuant to the provisions of the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents or pursuant to any Requirements Requirement of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor Seller or any other Person; (b) the waiver by Buyer of, or the failure of Buyer to enforce, or the lack of diligence by Buyer in connection with, the enforcement of any of its rights or remedies under the Repurchase Transaction Documents, the Mortgage Purchased Loan Documents, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities; (c) the granting by Buyer of (or failure by Buyer to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer of or failure to exercise any so—-called self—-help remedies; (e) any occurrence, condition, circumstance event, action or omission that might in any manner or to any extent vary, alter, increase, extend or continue the risk to Guarantor or might otherwise operate as a discharge or release of Guarantor under Requirements Requirement A&R Limited Guaranty of Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Liabilities, or any part thereof, of Seller, Guarantor, Pledgor, any co—Guarantor or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, limitation of the liability or insolvency of Seller, any Guarantor, Pledgor, any Underlying Obligor or any Person liable for or obligated on the Guarantor Liabilities, or any of their estates in bankruptcy resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor Seller or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Transaction Documents; (h) any present or future Requirements Requirement of Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Guaranty or the Guarantor Liabilities, the Mortgage Purchased Loan Documents, any or all of the obligations, covenants or agreements of Seller, Pledgor, the Underlying Obligors or any other Person under the Repurchase Transaction Documents or Mortgage Purchased Loan Documents (except by satisfaction in full of all Guarantor Liabilities) or of any Guarantor under this Guaranty and/or any failure of Buyer to notify any Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Liabilities or any part thereof owing or payable by Seller or any other Person under the Repurchase Transaction Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Liabilities) of Seller or any other Person against Buyer or against payment of the Guarantor Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for the Guarantor Liabilities in favor of Buyer, any other Indemnified Person Parties or any other Person specified in the Repurchase Transaction Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or property; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property of Seller, Pledgor Seller or any Guarantor, or any changes in the shareholders, partners or members of Seller, Pledgor Seller or any Guarantor, or any reorganization, consolidation or merger of Seller, Pledgor Seller or any Guarantor; (n) the invalidity, illegality, insufficiency or unenforceability of all or any part of the Guarantor Liabilities, the Repurchase Transaction Documents, the Purchased Assets, the Pledged CollateralLoans, any collateral, security or property for the Repurchase Transaction Documents or the Guarantor Liabilities, the Mortgage Purchased Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Liabilities, or any part thereof, exceeds the amount permitted by Requirements Requirement of Law or violates usury laws or exceeds the Repurchase Obligations, (2) the act of creating the Guarantor Liabilities, the AssetsPurchased Loans, the Purchased Assets, the Pledged Collateral, the Repurchase Transaction Documents, any collateral, security or property for the Guaranty or the Guarantor Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Purchased Loan Documents or Repurchase Transaction Documents or otherwise creating the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities acted in A&R Limited Guaranty excess of their authority, (4) Seller, Pledgor, any Underlying Obligor or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities (or the execution, delivery and performance of any Repurchase Transaction Document, Mortgage Purchased Loan Document or document or instrument representing part of the Guarantor Liabilities, the Assets, the Purchase Items, the Pledged Collateral, Loans any collateral, security or property for the Guaranty or the Guarantor Liabilities or executed in connection with the Guarantor Liabilities, the Assets, the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property for the Guaranty or the Guarantor Liabilities, or given to secure the repayment of the Guarantor Liabilities, the Assets Liabilities or the other Purchased AssetsLoans) is illegal, uncollectible or unenforceable or (6) any Mortgage Purchased Loan Document, any Repurchase Transaction Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased Assets, the Pledged Collateral Loans or any collateral, security or property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Liabilities; (p) the failure of Buyer or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased Assets, the Pledged Collateral Loans or any other collateral, security or property for the Guaranty or the Guarantor Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer (1) to take or prosecute any action for the collection of any of the Guarantor Liabilities, the Pledged Collateral, any Purchased Asset Loan or any collateral, security or property for the Guaranty or the Guarantor Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased Asset, the Pledged Collateral Loan or any security, collateral or property for the Guaranty or Guarantor Liabilities or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Liabilities; (q) the existence, value, or condition of the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien securing the Repurchase Transaction Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral Loans or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly A&R Limited Guaranty or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.
Appears in 1 contract
Sources: Limited Guaranty (Colony NorthStar Credit Real Estate, Inc.)
Validity of Guaranty. The validity of this Guaranty, the obligations of the Limited Guarantor hereunder and Buyerthe Deal Agent’s, the Purchaser’s and the other Secured Parties’ rights and remedies for the enforcement of the foregoing shall in no way be terminated, abated, reduced, released, modified, changed, compromised, discharged, diminished, affected, limited or impaired in any manner whatsoever by the happening from time to time of any occurrence, condition, circumstance, event, action event or omission condition of any kind whatsoever, including, without limitation, any of the following (and the Limited Guarantor hereby waives any common law, equitable, statutory, constitutional, regulatory or other rights (including rights to notice), defenses (legal and equitable), set-off, counterclaims and claims ) which the Limited Guarantor might have now or hereafter as a result of or in connection with any of the following):
): (a) Buyer’s the assertion or non—–assertion by the Deal Agent, the Purchaser or election the other Secured Parties of any of the rights or remedies available to Buyer the Deal Agent, the Purchaser or the other Secured Parties pursuant to the provisions of the Repurchase Documents, the Mortgage Loan Documents or pursuant to any Requirements of Law and the impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity against Seller, Pledgor or any other PersonApplicable Law; (b) the waiver by Buyer the Deal Agent, the Purchaser or the other Secured Parties of, or the failure of Buyer the Deal Agent, the Purchaser or the other Secured Parties to enforce, or the lack of diligence by Buyer the Deal Agent, the Purchaser or the other Secured Parties in connection with, the enforcement of any of its rights or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities; (c) the granting by Buyer the Deal Agent, the Purchaser or the other Secured Parties of (or failure by Buyer the Deal Agent, the Purchaser or the other Secured Parties to grant) any indulgence, forbearance, adjustment, compromise, consent, approval, waiver or extension of time; (d) the exercise by Buyer the Deal Agent, the Purchaser or the other Secured Parties of or failure to exercise any so—–called self—–help remedies; (e) any occurrenceact, condition, circumstance event, action omission or omission condition that might in any manner or to any extent vary, alter, increase, extend or continue the risk to the Limited Guarantor or might otherwise operate as a discharge or release of the Limited Guarantor under Requirements of Applicable Law; (f) any full or partial release or discharge of or accord and satisfaction with respect to liability for the Guarantor Guarantee Liabilities, or any part thereof, of the Seller, the Limited Guarantor, the Pledgor, the Parent, any other Repurchase Party, any co—Guarantor –guarantors or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guarantor Guarantee Liabilities, or any part thereof; (g) the impairment, modification, change, release, discharge, discharge or limitation of the liability or insolvency of the Seller, any the Limited Guarantor, the Pledgor, the Parent, any Underlying Obligor other Repurchase Party, any Borrower or any Person liable for or obligated on the Guarantor Guarantee Liabilities, or any of their estates in bankruptcy bankruptcy, resulting from or pursuant to the bankruptcy or insolvency of any of the foregoing or the application of the Insolvency Laws or of or any decision of any court of the United States or any state thereof or of any foreign jurisdiction or Seller, Pledgor or any Guarantor ceasing to be liable for all or any portion of the Guarantor Liabilities other than in accordance with the Repurchase Documentsthereof; (h) any present or future Requirements of Applicable Law or order of any Governmental Authority (de jure or de facto) purporting to reduce, amend or otherwise affect the Guarantor Guarantee Liabilities or to vary any terms of payment, satisfaction or discharge thereof; (i) the waiver, compromise, settlement, release, extension, amendment, change, modification, substitution, replacement, reduction, increase, alteration, rearrangement, renewal or termination of the terms of the Guarantor Guarantee Liabilities, the Repurchase Documents, the Purchased AssetsItems, the Pledged Collateral, any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents, any or all of the obligations, covenants or agreements of the Seller, the Pledgor, the Underlying Obligors Parent, the other Repurchase Parties, the Borrowers or any other Person under the Repurchase Documents or Mortgage Loan Documents (except by satisfaction in full of all Guarantor Guarantee Liabilities) or of any the Limited Guarantor under this Guaranty and/or any failure of Buyer the Deal Agent, the Purchaser or the other Secured Parties to notify any the Limited Guarantor of any of the foregoing; (j) the extension of the time for satisfaction, discharge or payment of the Guarantor Guarantee Liabilities or any part thereof owing or payable by the Seller or any other Person under the Repurchase Documents or of the time for performance of any other obligations, covenants or agreements under or arising out of this Guaranty or the extension or renewal of any thereof; (k) any existing or future offset, counterclaim, claim or defense (other than payment in full of the Guarantor Guarantee Liabilities) of the Seller or any other Person against Buyer the Deal Agent, the Purchaser or the other Secured Parties or against payment of the Guarantor Guarantee Liabilities, whether such offset, claim or defense arises in connection with the Guarantor Guarantee Liabilities (or the transactions creating same) or otherwise; (l) the taking or acceptance or refusal to take or accept or the existence of any other guaranty of or collateral, security or property for Property securing the Guarantor Guarantee Liabilities in favor of Buyerthe Deal Agent, the Purchaser, the other Secured Parties, any other Indemnified Person Affected Party or any other Person specified in the Repurchase Documents or the enforcement or attempted enforcement of such other guaranty, collateral, security or propertyProperty; (m) any sale, lease, sublease or transfer of or Lien on all or a portion of the assets or property Property of the Seller, Pledgor the Pledgor, the Limited Guarantor, the Parent or any Guarantorother Repurchase Party, or any changes in the shareholders, partners or members of the Seller, Pledgor the Pledgor, the Limited Guarantor, the Parent or any Guarantorother Repurchase Party, or any reorganization, consolidation or merger of the Seller, Pledgor the Pledgor, the Limited Guarantor, the Parent or any Guarantorother Repurchase Party; (n) the invalidity, illegality, insufficiency illegality or unenforceability of all or any part of the Guarantor Guarantee Liabilities, the Repurchase Documents, the Purchased AssetsItems, the Pledged Collateral, any collateral, security or property for Property securing the Repurchase Documents Guaranty or the Guarantor Guarantee Liabilities, the Mortgage Loan Documents or any document or agreement executed in connection with the foregoing, for any reason whatsoever, including, without limitation, the fact that (1) the Guarantor Guarantee Liabilities, or any part thereof, exceeds the amount permitted by Requirements of Applicable Law or violates usury laws or exceeds the Repurchase Obligationslaws, (2) the act of creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral, the Repurchase Documents, any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities or any part of the foregoing is ultra ▇▇▇▇▇, (3) the officers or representatives executing the Mortgage Loan Documents or Repurchase Documents or otherwise creating the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities acted in excess of their authority, (4) the Seller, the Pledgor, the Parent, any Underlying Obligor other Repurchase Party, any Borrower or any other Person has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guarantor Guarantee Liabilities wholly or partially uncollectible, (5) the creation, performance or repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities (or the execution, delivery and performance of any Repurchase Document, Mortgage Loan Document or document or instrument representing part of the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchase Items, the Pledged Collateral, any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities or executed in connection with the Guarantor Guarantee Liabilities, the Mortgage Assets, the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, or given to secure the repayment of the Guarantor Guarantee Liabilities, the Mortgage Assets or the other Purchased AssetsItems) is illegal, uncollectible or unenforceable unenforceable, or (6) any Mortgage Loan Document, any Repurchase Document or any other document, agreement or instrument has been forged or otherwise is irregular or not genuine or authentic; (o) any release, waiver, termination, sale, pledge, participation, transfer, surrender, exchange, subordination, deterioration, waste, loss, diminution loss or impairment (including, without limitation, negligent, willful, unreasonable or unjustifiable impairment) of the Purchased AssetsItems, the Pledged Collateral or any collateral, security or property Property at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranty or the Guarantor Guarantee Liabilities; (pq) the failure of Buyer the Deal Agent, the Purchaser, the other Secured Parties or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of the Purchased AssetsItems, the Pledged Collateral or any other collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, including, but not limited to, any neglect, delay, omission, failure or refusal of Buyer the Deal Agent, the Purchaser or the other Secured Parties (1) to take or prosecute any action for the collection of any of the Guarantor Guarantee Liabilities, the Pledged Collateral, any Purchased Asset Item or any collateral, security or property for Property securing the Guaranty or the Guarantor Guarantee Liabilities, (2) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose, upon any Purchased AssetItem, the Pledged Collateral or any security, collateral or property for Property securing the Guaranty or Guarantor Liabilities Guarantee Liabilities, or (3) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guarantor Guarantee Liabilities; (qr) the existence, value, or condition of fact that the Purchased AssetsItems, the Pledged Collateral or any collateral, security, property or Lien securing the Repurchase Documents or the Guarantor Liabilities, or the fact that the Purchased Assets, the Pledged Collateral or any collateral, security, property or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranty or the Guarantor Liabilities, or any part thereof, shall not be properly perfected or created, or shall prove to be unenforceable, invalid, insufficient, illegal or subordinate to any other Lien or Buyer’s actions or omissions in respect to any of the foregoing; (r) any payment by Seller or any other Person to Buyer is held to constitute a preference under Insolvency Laws, or for any reason Buyer is required to refund such payment or pay such amount to such Seller or other Person; (s) any act which may accelerate the operation of any statute of limitations applicable to the Guarantor Liabilities or (t) any event or action that would, in the absence of this Section 2.04, result in the full or partial, legal or equitable, release, discharge, defense of guaranty or surety or relief of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, in each case, whether or not such event or action increases the likelihood that Guarantor will be required to pay the Guarantor Liabilities pursuant to the terms hereof or thereof and whether or not such event or action prejudices Guarantor, it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Guarantor Liabilities when due, notwithstanding any occurrence, condition, circumstance, event, action or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly or expressly described herein, which obligation shall be deemed satisfied only upon the full and final indefeasible payment and satisfaction of the Guarantor Liabilities.secu
Appears in 1 contract
Sources: Guaranty Agreement (Municipal Mortgage & Equity LLC)