Absolute Guaranty. The Guaranty Obligations are the immediate, direct, primary, and absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events: (a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations; (b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantor; (c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any Liabilities; (d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any sale, lease, transfer, or other disposition of any or all of the assets of Borrower or Guarantor; (e) any assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Document, including this Agreement, or of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral; (f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral; (g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations; (h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations; (i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or (j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be discharged.
Appears in 3 contracts
Sources: Guaranty Agreement (BLC Financial Services Inc), Guaranty Agreement (BLC Financial Services Inc), Guaranty Agreement (BLC Financial Services Inc)
Absolute Guaranty. The Guaranty Obligations are To the immediate, direct, primaryfullest extent permitted by Applicable Law, and absolute obligations except as limited by the express terms hereof, the liability of Guarantorthe Guarantor under this Guaranty shall be absolute, shall not be subject to any condition precedentunconditional and irrevocable irrespective of, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired Guarantor waives any right or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Lender's exercise or enforcement defense arising out of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action the lack of power or inaction authority of Lender the Guarantor to perfect, protect, execute and deliver this Guaranty or enforce any security interest in any Collateralof HQSub to execute and deliver the Agreement; (ii) the failure of HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into any impairment other corporation or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligationsother entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any security interest in or Lien upon the Collateralother business entity; or (iii) any change in the timedisposal, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, compositiontransfer, assignment for the benefit of creditors, appointment of a receiver or trustee for other disposition or all or any part of Borrower's the direct or Guarantor's assetsindirect interest of the Guarantor in HQSub; (iv) the bankruptcy, liquidationinsolvency, winding-updissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or dissolution its making of Borrower a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor;
, HQSub, as debtor, or HQSub’s trustee or receiver); (cv) any limitation, discharge, cessationfailure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation notice of any statutefailure on the part of HQSub to do any act or thing or to observe or perform any covenant, regulation, condition or rule of law, agreement by it to be observed or otherwise, regardless of performed under the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this AgreementGuaranty; (vi) the absence, impairment or loss of any other Loan Documentright of reimbursement, contribution or subrogation or any other document evidencing right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any Liabilities;
amendment, modification or extension of the Agreement; (dviii) any mergerassertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, acquisitioninterdict, consolidation condition, reduce or change in structure inhibit the ability of Borrower or the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or any sale, lease, transferwithout knowledge of the Beneficiary or the Guarantor) that constitutes, or other disposition of any might be construed to constitute, an equitable or all legal discharge or defense of the assets of Borrower or Guarantor;
(e) any assignment or other transferGuarantor under this Guaranty, in whole bankruptcy or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Documentinstance, including this Agreement, all defenses of a guarantor or of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsurety generally, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision full, final and indefeasible payment of the UCC requiring that Guaranteed Obligations by the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedand/or HQSub.
Appears in 3 contracts
Sources: Transmission Service Agreement, Transmission Service Agreement (Public Service Co of New Hampshire), Transmission Service Agreement (Nstar/Ma)
Absolute Guaranty. The Guaranty Obligations are To the immediate, direct, primaryfullest extent permitted by Applicable Law, and absolute obligations except as limited by the express terms hereof, the liability of Guarantorthe Guarantor under this Guaranty shall be absolute, shall not be subject to any condition precedentunconditional and irrevocable irrespective of, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired Guarantor waives any right or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Lender's exercise or enforcement defense arising out of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action the lack of power or inaction authority of Lender the Guarantor to perfect, protect, execute and deliver this Guaranty or enforce any security interest in any Collateralof NPT to execute and deliver the Agreement; (ii) the failure of NPT to exist as a legal entity or the consolidation or merger of NPT with or into any impairment other corporation or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligationsother entity, or the sale, lease or other disposition by NPT of all or substantially all of its assets to any security interest in or Lien upon the Collateralother business entity; or (iii) any change in the timedisposal, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, compositiontransfer, assignment for the benefit of creditors, appointment of a receiver or trustee for other disposition or all or any part of Borrower's the direct or Guarantor's assetsindirect interest of the Guarantor in NPT; (iv) the bankruptcy, liquidationinsolvency, winding-updissolution, administration, reorganization, or dissolution liquidation of Borrower NPT, the admission in writing by NPT of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor;
, NPT, as debtor, or NPT’s trustee or receiver); (cv) any limitation, discharge, cessationfailure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation notice of any statutefailure on the part of NPT to do any act or thing or to observe or perform any covenant, regulation, condition or rule of law, agreement by it to be observed or otherwise, regardless of performed under the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this AgreementGuaranty; (vi) the absence, impairment or loss of any other Loan Documentright of reimbursement, contribution or subrogation or any other document evidencing right or remedy of the Guarantor against NPT; (vii) subject to Section 2 of this Guaranty, any Liabilities;
amendment, modification or extension of the Agreement; (dviii) any mergerassertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of NPT shall operate or be interpreted to stay, acquisitioninterdict, consolidation condition, reduce or change in structure inhibit the ability of Borrower or the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or any sale, lease, transferwithout knowledge of the Beneficiary or the Guarantor) that constitutes, or other disposition of any might be construed to constitute, an equitable or all legal discharge or defense of the assets of Borrower or Guarantor;
(e) any assignment or other transferGuarantor under this Guaranty, in whole bankruptcy or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Documentinstance, including this Agreement, all defenses of a guarantor or of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsurety generally, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision full, final and indefeasible payment of the UCC requiring that Guaranteed Obligations by the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedand/or NPT.
Appears in 3 contracts
Sources: Transmission Service Agreement, Transmission Service Agreement (Public Service Co of New Hampshire), Transmission Service Agreement (Nstar/Ma)
Absolute Guaranty. The Guaranty Obligations are the immediate, direct, primary, and absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor and Guarantor shall Guarantor or the Collateral not be exonerated, discharged, discharged or released by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities New Loan or the Guaranty Obligations or any power, right, or remedy with respect to any of the LiabilitiesNew Loan, the Collateral, or the Guaranty Obligations, includingor the Collateral, including without limitation: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in lien upon any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iiiii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities New Loan or the Guaranty Obligations, or any other amendment to to, or waiver of of, the Loan Credit Agreement, any other New Loan Document, or any other agreement or instrument governing or evidencing the New Loan or any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assetsassets or of the assets of any other guarantor of the Obligations, liquidation, winding-up, or dissolution of Borrower or Guarantor, or any other guarantor of the Obligations;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any New Loan, the Guaranty Obligations, whether by operation or the obligations of any statute, regulation, or rule of law, or otherwise, regardless other guarantor of the intervention or omission of LenderObligations, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, of the Loan Credit Agreement, this AgreementGuaranty, any other New Loan Document, or any other document evidencing any Liabilitiesthe New Loan or Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower or GuarantorGuarantor or any other guarantor of the Obligations; or any sale, lease, transfer, or other disposition of any or all of the assets or Equity Interests of Borrowers or Guarantor or any other guarantor of the Obligations, including, without limitation, any transfer by Borrower of all or Guarantorany part of any Collateral, or termination of Borrower's existence for any reason;
(e) any assignment or other transfer, in whole or in part, of Lender's interest in and or rights in or under the Loan Agreement Credit Agreement, or any other New Loan Document, including including, without limitation, this AgreementGuaranty, or of Lender's interest in with respect to the LiabilitiesNew Loan, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsetoff that Borrower or Guarantor or any other guarantor of the Obligations may have or assert, including, without limitation, any defense of incapacity, disability, or lack of corporate, organizational or other authority to execute any document relating to the New Loan, the Guaranty Obligations, the Collateral, or any other Guaranty, other than (i) any upon the occurrence of the Guaranty Termination Date, the defense of prior performance performance, or (ii) any defense based on any applicable provision of the UCC Uniform Commercial Code requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, renunciation or surrender of any pledge, guaranty, or any debt instrument evidencing the Liabilities New Loan or the Guaranty Obligations;
(h) Lender's the vote, claim, distribution, election, acceptance, action, or inaction of Lender in any bankruptcy or reorganization case related to the CollateralNew Loan, the LiabilitiesGuaranty Obligations, or the Guaranty Obligations;Collateral; or
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in partGuarantor; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargeddischarged until the Guaranty Termination Date.
Appears in 2 contracts
Sources: Guaranty Agreement (Integrated Healthcare Holdings Inc), Guaranty Agreement (Integrated Healthcare Holdings Inc)
Absolute Guaranty. The Guaranty guaranty of the Guarantor under this Agreement is a guaranty of payment and not of collection and shall remain in effect until all of the Guarantor’s Obligations are indefeasibly paid in full. The Guarantor’s Obligations are the immediateprimary, direct, primary, and absolute immediate obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, Guarantor and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, dischargedsubject to, or released byconditioned upon, and may be enforced against the Guarantor irrespective of the occurrence of, any of the following eventsfollowing:
(a) Lender's exercise Any pursuit, enforcement, or enforcement exhaustion of any rights or remedies the Administration may have to collect the Guarantor’s Obligations from the Borrower or from any other maker, endorser, surety or guarantor of, or failure or delay in exercising or enforcingpledgor of collateral for, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any part of the LiabilitiesGuarantor’s Obligations (each other maker, the Collateralendorser, surety, guarantor or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligationspledgor being an “Obligor” and collectively “Obligors”), or any recourse to or against any collateral or security interest in or Lien upon the Collateral; or (iii) for any change in the time, manner, or place of payment of, or in any other term of, any or all part of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Guarantor’s Obligations;
(b) insolvencyThe invalidity, bankruptcylack of priority, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all unenforceability in whole or any in part of Borrower's or Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantorany the Financing Documents;
(c) any limitationAny counterclaim, dischargerecoupment, cessationsetoff, reduction, or partial satisfaction of defense based on any claim that the Liabilities or any Guaranty ObligationsGuarantor may have against the Administration, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of LenderBorrower, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any LiabilitiesObligor;
(d) any The voluntary or involuntary liquidation, dissolution, termination, merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any sale, lease, transfer, or other disposition of the Borrower or any or all of the assets of Borrower or GuarantorBorrower’s assets;
(e) Any bankruptcy, reorganization, insolvency, or similar proceedings for the relief of debtors under any assignment federal or other transfer, in whole state law by or in part, of Lender's interest in and rights under against the Loan Agreement Borrower or any other Loan Document, including this AgreementObligor, or of Lender's interest in the Liabilitiesany discharge, the Guaranty Obligationslimitation, modification, or release of liability of the CollateralBorrower or any Obligor arising out of any such proceedings;
(f) any claim, defense, counterclaim, Any event or set-off, other than (i) any defense matter to which the Guarantor has consented under the terms of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;this Agreement; and
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any Any other action or circumstances circumstance that might otherwise constitute a defense available to, or a legal or equitable discharge ofdischarge, any suretyrelease, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason defense of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that Obligor (other than the Guaranty Obligations shall not be dischargedGuarantor).
Appears in 2 contracts
Sources: Personal Guaranty Agreement, Personal Guaranty Agreement
Absolute Guaranty. The Guarantor's liabilities and obligations under this Guaranty Obligations are the immediate, direct, primary, shall be absolute and absolute obligations of Guarantorunconditional irrespective of, shall not be subject to any condition precedentreleased, impaired, limited, reduced, conditioned upon or otherwise affected by and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without regard tolimitation, any one or more of the following events specified in clauses (a) through (o) of this Paragraph 4 below, and neither GE Capital nor any Lessor shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not be impaired have any liability, obligation or affected byduty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor that all of such liabilities, obligations and duties (if any) of GE Capital or be deemed any Lessor otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to be satisfied byeliminate, nor shall impair, condition or restrict any indebtedness, liability or obligation of Guarantor for payment of the Guaranteed Obligations or the Collateral be exoneratedotherwise under this Guaranty is hereby expressly waived by Guarantor, dischargedincluding, or released bywithout limitation, any defense consisting of or based upon any one or more of the following eventsmatters specified in clauses (a) through (o) of this Paragraph 4 below:
(a) Lender's exercise the taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of compliance with the Loan Agreement, Restated Lease Agreement or any other Loan Credit Document, or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligationsnotification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(be) insolvency, the bankruptcy, reorganizationinsolvency, arrangement, adjustment, composition, assignment liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Savvis, Guarantor or any other Credit Party or other Person at any time liable or obligated for the benefit payment of creditorsany or all of the Guaranteed Obligations, appointment whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of a receiver the payment or trustee any other terms or provisions of any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor, or any adjustment, indulgence, forbearance or compromise that might be granted or given by GE Capital or any Lessor to Savvis, Guarantor or any Credit Party;
(g) any neglect, delay, omission, failure or refusal of GE Capital or any Lessor (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the Guaranteed Obligations or the collection thereof or any collateral, security or guaranty therefor, whether under the Restated Lease Agreement or any other Credit Document or otherwise, including, without limitation, to ensure compliance with any term or provision of the Restated Lease Agreement or any other Credit Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Savvis, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Credit Party or Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of Borrower's or Guarantor's assetsthe Guaranteed Obligations, liquidationincluding, winding-upwithout limitation, any failure to conduct a commercially reasonable foreclosure sale, or dissolution of Borrower (iv) to mitigate damages or Guarantortake any other action to reduce, collect or enforce the Guaranteed Obligations;
(ch) any limitation, discharge, cessationfailure of GE Capital or any Lessor to give notice to Savvis or Guarantor and/or any other Credit Party of, or partial satisfaction obtain the consent of Savvis or Guarantor and/or any other Credit Party with respect to, (i) the incurrence of any of the Liabilities Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Restated Lease Agreement or any Guaranty of the other Credit Documents, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (v) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by GE Capital or any Lessor against Savvis or any other Credit Party, it being agreed that (except as may be expressly provided in the other Credit Documents) neither GE Capital nor any Lessor shall be required to give Savvis, Guarantor or any other Credit Party any notice of any kind or to obtain Savvis', Guarantor's or any other Credit Party's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations ___ against Savvis or any other Credit Party by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra ▇▇▇▇▇, (vi) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vii) the Restated Lease Agreement or any other Credit Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, (viii) expiration of the applicable statute of limitations of the Guaranteed Obligations, whether by operation (ix) failure to comply with the statute of any statutefrauds, regulation(x) lender liability, or rule of (xi) accord and satisfaction;
(j) any payment by Savvis or any other Credit Party to GE Capital or any Lessor is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or otherwise, regardless of the intervention or omission of Lender, for any reason GE Capital or any invalidity, voidability, unenforceability, Lessor is required to refund such payment or irregularity, or future change pay such amount to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, Savvis or any other document evidencing Credit Party or any Liabilitiesother Person;
(dk) any merger, acquisitionreorganization, consolidation or change in structure dissolution of Borrower Savvis or Guarantor; or any other Credit Party, any sale, lease, transfer, lease or other disposition transfer of any or all of the assets of Borrower Savvis or Guarantorany other Credit Party or any change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Savvis or any other Credit Party;
(el) any assignment failure of GE Capital or any Credit Party to notify Guarantor of (i) the acceptance of this Guaranty, (ii) the making of loans by any Lessor in reliance on this Guaranty, (iii) the failure of Savvis or any other transferCredit Party to make any payment due by Savvis or any other Credit Party to GE Capital or any Lessor, or (iv) any information regarding the financial condition or prospects of Savvis or any other Credit Party;
(m) any existing or future offset, claim or defense of Savvis or any other Credit Party against GE Capital or any Lessor or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in whole connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any full or partial release of the liability of Savvis or any other Credit Party, any guarantor of all or any part of the Guaranteed Obligations or any other Person for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to pay the Guaranteed Obligations in partfull without assistance or support, whether from Savvis or any other Credit Party, any other guarantor or any other Person; or
(o) any other action taken or omitted to be taken with respect to any of Lender's interest in and rights under the Loan Restated Lease Agreement or any other Loan Credit Document, including the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the Guaranteed Obligations pursuant to the terms hereof. The parties intend the preceding waiver of suretyship defenses to have the effects described in Section 48 of the Restatement (Third) of the Law of Suretyship and Guaranty. Without limiting the foregoing or Guarantor's liability under this AgreementGuaranty, to the extent that GE Capital and Lessors (or any of Lender's interest them) extended credit to Savvis and do not receive payments or benefits thereon in the Liabilities, amounts and at the Guaranty Obligations, times required or the Collateral;
(f) any claim, defense, counterclaim, provided by or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with the Restated Lease Agreement or by reason of any agreement or transaction that may be illegalother Credit Document, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedis absolutely liable to make such payments and to confer such benefits on Lessors on a timely basis.
Appears in 2 contracts
Sources: Guaranty Agreement (Savvis Communications Corp), Guaranty Agreement (Savvis Communications Corp)
Absolute Guaranty. The Guaranty Obligations are the immediate, direct, primary, and absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor and Guarantor shall Guarantor or the Collateral not be exonerated, discharged, discharged or released by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities Loan or the Guaranty Obligations or any power, right, or remedy with respect to any of the LiabilitiesLoan, the Collateral, or the Guaranty Obligations, includingor the Collateral, including without limitation: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in lien upon any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iiiii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities Loan or the Guaranty Obligations, or any other amendment to to, or waiver of of, the Loan Credit Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing the Loan or any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assetsassets or of the assets of any other guarantor of the Obligations, liquidation, winding-up, or dissolution of Borrower or Guarantor, or any other guarantor of the Obligations;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Loan, the Guaranty Obligations, whether by operation or the obligations of any statute, regulation, or rule of law, or otherwise, regardless other guarantor of the intervention or omission of LenderObligations, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, of the Loan Credit Agreement, this AgreementGuaranty, any other Loan Document, or any other document evidencing any Liabilitiesthe Loan or Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower or GuarantorGuarantor or any other guarantor of the Obligations; or any sale, lease, transfer, or other disposition of any or all of the assets or Equity Interests of any Borrowers or Guarantor or any other guarantor of the Obligations, including, without limitation, any transfer by Borrower of all or Guarantorany part of any Collateral, or termination of Borrower's existence for any reason;
(e) any assignment or other transfer, in whole or in part, of Lender's interest in and or rights in or under the Loan Agreement Credit Agreement, or any other Loan Document, including including, without limitation, this AgreementGuaranty, or of Lender's interest in with respect to the LiabilitiesLoan, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsetoff that Borrower or Guarantor or any other guarantor of the Obligations may have or assert, including, without limitation, any defense of incapacity, disability, or lack of corporate, organizational or other authority to execute any document relating to the Loan, the Guaranty Obligations, the Collateral, or any other Guaranty, other than (i) any upon the occurrence of the Guaranty Termination Date, the defense of prior performance performance, or (ii) any defense based on any applicable provision of the UCC Uniform Commercial Code requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, renunciation or surrender of any pledge, guaranty, or any debt instrument evidencing the Liabilities Loan or the Guaranty Obligations;
(h) Lender's the vote, claim, distribution, election, acceptance, action, or inaction of Lender in any bankruptcy or reorganization case related to the CollateralLoan, the LiabilitiesGuaranty Obligations, or the Guaranty Obligations;Collateral; or
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in partGuarantor; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargeddischarged until the Guaranty Termination Date.
Appears in 2 contracts
Sources: Guaranty Agreement (Integrated Healthcare Holdings), Guaranty Agreement (Integrated Healthcare Holdings)
Absolute Guaranty. The Guarantor's liabilities and obligations under this Guaranty Obligations are the immediate, direct, primary, shall be absolute and absolute obligations of Guarantorunconditional irrespective of, shall not be subject to any condition precedentreleased, impaired, limited, reduced, conditioned upon or otherwise affected by and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without regard tolimitation, any one or more of the following events specified in clauses (a) through (n) of this Paragraph 4 below, and neither Administrative Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not be impaired have any liability, obligation or affected byduty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor that all of such liabilities, obligations and duties (if any) of Administrative Agent or be deemed any Lender otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to be satisfied byeliminate, nor shall impair, condition or restrict the liabilities and obligations of Guarantor or for the Collateral be exoneratedGuaranteed Obligations, discharged, or released by, any of the following eventsare hereby expressly waived by Guarantor:
(a) Lender's exercise the taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of compliance with the Loan Credit Agreement, any Note or any other Loan Document, or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligationsnotification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(be) insolvency, the bankruptcy, reorganizationinsolvency, arrangement, adjustment, composition, assignment liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Borrower, Guarantor or any other Person at any time liable or obligated for the benefit payment of creditorsany or all of the Guaranteed Obligations, appointment whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of a receiver or trustee for all the payment or any part other terms or provisions of Borrower's any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor's assets, liquidation, winding-up, or dissolution of any adjustment, indulgence, forbearance or compromise that might be granted or given by Administrative Agent or any Lender to Borrower or Guarantor;
(cg) any limitationneglect, dischargedelay, cessationomission, failure or partial satisfaction refusal of Administrative Agent or any Lender (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the Liabilities Guaranteed Obligations or the collection thereof or any Guaranty Obligationscollateral, security or guaranty therefor, whether by operation of under the Credit Agreement, any statute, regulation, Note or rule of law, any other Loan Document or otherwise, regardless including, without limitation, to ensure compliance with any term or provision of the intervention Credit Agreement or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document evidencing or instrument or arrangement evidencing, securing or otherwise affecting all or any Liabilitiespart of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(dh) any failure of Administrative Agent or any Lender to give notice to Borrower and/or Guarantor of, or obtain the consent of Borrower and/or Guarantor with respect to, (i) the incurrence of any of the Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Credit Agreement or any of the other Loan Document, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (vi) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by Administrative Agent or any Lender against Borrower, it being agreed that (except as may be expressly provided in the other Loan Documents) neither Administrative Agent nor any Lender shall be required to give Borrower or Guarantor any notice of any kind or to obtain Borrower's or Guarantor's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra ▇▇▇▇▇, (vi) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vii) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, (viii) expiration of the applicable statute of limitations of the Guaranteed Obligations, (ix) failure to comply with the statute of frauds, (x) lender liability, or (xi) accord and satisfaction;
(j) any payment by Borrower to Administrative Agent or any Lender is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason Administrative Agent or any Lender is required to refund such payment or pay such amount to Borrower or any other Person;
(k) any merger, acquisitionreorganization, consolidation or change in structure dissolution of Borrower or Guarantor; or Borrower, any sale, lease, transfer, lease or other disposition transfer of any or all of the assets of Borrower Borrower, or Guarantorany change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Borrower;
(el) any assignment failure of Administrative Agent or any Lender to notify Guarantor of (i) the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any full or partial release of the liability of Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other transferPerson for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to pay the Guaranteed Obligations in whole full without assistance or in partsupport, whether from Borrower, any other guarantor or any other Person; or
(n) any other action taken or omitted to be taken with respect to any of Lender's interest in and rights under the Loan Agreement Credit Agreement, any Note or any other Loan Document, including the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the Guaranteed Obligations pursuant to the terms hereof. Without limiting the foregoing or Guarantor's liability under this AgreementGuaranty, to the extent that Administrative Agent and Lenders (or any of Lender's interest them) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in the Liabilities, amounts and at the Guaranty Obligations, times required or the Collateral;
(f) any claim, defense, counterclaim, provided by or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with the Credit Agreement, any Notes or by reason of any agreement or transaction that may be illegalother Loan Document, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedis absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 2 contracts
Sources: Guaranty Agreement (Savvis Communications Corp), Guaranty Agreement (Savvis Communications Corp)
Absolute Guaranty. The Guarantor's liabilities and obligations under this Guaranty Obligations are the immediate, direct, primary, shall be absolute and absolute obligations of Guarantorunconditional irrespective of, shall not be subject to any condition precedentreleased, impaired, limited, reduced, conditioned upon or otherwise affected by and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without regard tolimitation, any one or more of the following events specified in clauses (a) through (o) of this Paragraph 4 below, and neither GE Capital nor any Lessor shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not be impaired have any liability, obligation or affected byduty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor that all of such liabilities, obligations and duties (if any) of GE Capital or be deemed any Lessor otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to be satisfied byeliminate, nor shall impair, condition or restrict any indebtedness, liability or obligation of Guarantor for payment of the Guaranteed Obligations or the Collateral be exoneratedotherwise under this Guaranty is hereby expressly waived by Guarantor, dischargedincluding, or released bywithout limitation, any defense consisting of or based upon any one or more of the following eventsmatters specified in clauses (a) through (o) of this Paragraph 4 below:
(a) Lender's exercise the taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of compliance with the Loan Agreement, Restated Lease Agreement or any other Loan Credit Document, or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligationsnotification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(be) insolvency, the bankruptcy, reorganizationinsolvency, arrangement, adjustment, composition, assignment liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Savvis, Guarantor or any other Credit Party or other Person at any time liable or obligated for the benefit payment of creditorsany or all of the Guaranteed Obligations, appointment whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of a receiver the payment or trustee any other terms or provisions of any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor, or any adjustment, indulgence, forbearance or compromise that might be granted or given by GE Capital or any Lessor to Savvis, Guarantor or any Credit Party;
(g) any neglect, delay, omission, failure or refusal of GE Capital or any Lessor (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the Guaranteed Obligations or the collection thereof or any collateral, security or guaranty therefor, whether under the Restated Lease Agreement or any other Credit Document or otherwise, including, without limitation, to ensure compliance with any term or provision of the Restated Lease Agreement or any other Credit Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Savvis, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Credit Party or Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of Borrower's or Guarantor's assetsthe Guaranteed Obligations, liquidationincluding, winding-upwithout limitation, any failure to conduct a commercially reasonable foreclosure sale, or dissolution of Borrower (iv) to mitigate damages or Guarantortake any other action to reduce, collect or enforce the Guaranteed Obligations;
(ch) any limitation, discharge, cessationfailure of GE Capital or any Lessor to give notice to Savvis or Guarantor and/or any other Credit Party of, or partial satisfaction obtain the consent of Savvis or Guarantor and/or any other Credit Party with respect to, (i) the incurrence of any of the Liabilities Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Restated Lease Agreement or any Guaranty of the other Credit Documents, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (v) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by GE Capital or any Lessor against Savvis or any other Credit Party, it being agreed that (except as may be expressly provided in the other Credit Documents) neither GE Capital nor any Lessor shall be required to give Savvis, Guarantor or any other Credit Party any notice of any kind or to obtain Savvis', Guarantor's or any other Credit Party's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Savvis or any other Credit Party by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra ▇▇▇▇▇, (vi) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vii) the Restated Lease Agreement or any other Credit Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, (viii) expiration of the applicable statute of limitations of the Guaranteed Obligations, whether by operation (ix) failure to comply with the statute of any statutefrauds, regulation(x) lender liability, or rule of (xi) accord and satisfaction;
(j) any payment by Savvis or any other Credit Party to GE Capital or any Lessor is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or otherwise, regardless of the intervention or omission of Lender, for any reason GE Capital or any invalidity, voidability, unenforceability, Lessor is required to refund such payment or irregularity, or future change pay such amount to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, Savvis or any other document evidencing Credit Party or any Liabilitiesother Person;
(dk) any merger, acquisitionreorganization, consolidation or change in structure dissolution of Borrower Savvis or Guarantor; or any other Credit Party, any sale, lease, transfer, lease or other disposition transfer of any or all of the assets of Borrower Savvis or Guarantorany other Credit Party or any change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Savvis or any other Credit Party;
(el) any assignment failure of GE Capital or any Credit Party to notify Guarantor of (i) the acceptance of this Guaranty, (ii) the making of loans by any Lessor in reliance on this Guaranty, (iii) the failure of Savvis or any other transferCredit Party to make any payment due by Savvis or any other Credit Party to GE Capital or any Lessor, or (iv) any information regarding the financial condition or prospects of Savvis or any other Credit Party;
(m) any existing or future offset, claim or defense of Savvis or any other Credit Party against GE Capital or any Lessor or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in whole connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any full or partial release of the liability of Savvis or any other Credit Party, any guarantor of all or any part of the Guaranteed Obligations or any other Person for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to pay the Guaranteed Obligations in partfull without assistance or support, whether from Savvis or any other Credit Party, any other guarantor or any other Person; or
(o) any other action taken or omitted to be taken with respect to any of Lender's interest in and rights under the Loan Restated Lease Agreement or any other Loan Credit Document, including the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the Guaranteed Obligations pursuant to the terms hereof. The parties intend the preceding waiver of suretyship defenses to have the effects described in Section 48 of the Restatement (Third) of the Law of Suretyship and Guaranty. Without limiting the foregoing or Guarantor's liability under this AgreementGuaranty, to the extent that GE Capital and Lessors (or any of Lender's interest them) extended credit to Savvis and do not receive payments or benefits thereon in the Liabilities, amounts and at the Guaranty Obligations, times required or the Collateral;
(f) any claim, defense, counterclaim, provided by or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with the Restated Lease Agreement or by reason of any agreement or transaction that may be illegalother Credit Document, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedis absolutely liable to make such payments and to confer such benefits on Lessors on a timely basis.
Appears in 2 contracts
Sources: Guaranty Agreement (Savvis Communications Corp), Guaranty Agreement (Savvis Communications Corp)
Absolute Guaranty. The Guaranty Obligations are To the immediate, direct, primaryfullest extent permitted by Applicable Law, and absolute obligations except as limited by the express terms hereof, the liability of Guarantorthe Guarantor under this Guaranty shall be absolute, shall not be subject to any condition precedentunconditional and irrevocable irrespective of, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired Guarantor waives any right or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Lender's exercise or enforcement defense arising out of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action the lack of power or inaction authority of Lender the Guarantor to perfect, protect, execute and deliver this Guaranty or enforce any security interest in any Collateralof NPT to execute and deliver the Agreement; (ii) the failure of NPT to exist as a legal entity or the consolidation or merger of NPT with or into any impairment other corporation or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligationsother entity, or the sale, lease or other disposition by NPT of all or substantially all of its assets to any security interest in or Lien upon the Collateralother business entity; or (iii) any change in the timedisposal, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, compositiontransfer, assignment for the benefit of creditors, appointment of a receiver or trustee for other disposition or all or any part of Borrower's the direct or Guarantor's assetsindirect interest of the Guarantor in NPT; (iv) the bankruptcy, liquidationinsolvency, winding-updissolution, administration, reorganization, or dissolution liquidation of Borrower NPT, the admission in writing by NPT of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor;
, NPT, as debtor, or NPT’s trustee or receiver); (cv) any limitation, discharge, cessationfailure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation notice of any statutefailure on the part of NPT to do any act or thing or to observe or perform any covenant, regulation, condition or rule of law, agreement by it to be observed or otherwise, regardless of performed under the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this AgreementGuaranty; (vi) the absence, impairment or loss of any other Loan Documentright of reimbursement, contribution or subrogation or any other document evidencing right or remedy of the 1014917.31-D.C. Server 1A - MSW Guarantor against NPT; (vii) subject to Section 2 of this Guaranty, any Liabilities;
amendment, modification or extension of the Agreement; (dviii) any mergerassertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of NPT shall operate or be interpreted to stay, acquisitioninterdict, consolidation condition, reduce or change in structure inhibit the ability of Borrower or the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or any sale, lease, transferwithout knowledge of the Beneficiary or the Guarantor) that constitutes, or other disposition of any might be construed to constitute, an equitable or all legal discharge or defense of the assets of Borrower or Guarantor;
(e) any assignment or other transferGuarantor under this Guaranty, in whole bankruptcy or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Documentinstance, including this Agreement, all defenses of a guarantor or of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsurety generally, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision full, final and indefeasible payment of the UCC requiring that Guaranteed Obligations by the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedand/or NPT.
Appears in 1 contract
Sources: Transmission Service Agreement (Public Service Co of New Hampshire)
Absolute Guaranty. The Guaranty Obligations are the immediate, direct, primary, and absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantor;,
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any Liabilities;
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any sale, lease, transfer, or other disposition of any or all of the assets of Borrower or Guarantor;
(e) any assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Document, including this Agreement, or of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; , or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be discharged.
Appears in 1 contract
Absolute Guaranty. The Guaranty guaranty of the Guarantor under this Agreement is a guaranty of payment and not of collection and shall remain in effect until all of the Guarantor’s Obligations are indefeasibly paid in full. The Guarantor’s Obligations are the immediateprimary, direct, primary, and absolute immediate obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, Guarantor and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, dischargedsubject to, or released byconditioned upon, any of and may be enforced against the following eventsGuarantor irrespective of:
(a) Lender's exercise Any pursuit, enforcement, or enforcement exhaustion of any rights or remedies the Lender may have to collect any of the Guarantor’s Obligations from the Borrower or from any other maker, endorser, surety or guarantor of, or failure or delay in exercising or enforcingpledgor of collateral for, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any part of the LiabilitiesGuarantor’s Obligations (each other maker, the Collateralendorser, surety, guarantor or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligationspledgor being an “Obligor” and collectively “Obligors”), or any security interest in recourse to or Lien upon the Collateral; or (iii) against any change in the time, manner, or place of payment of, or in collateral for any other term of, any or all part of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Guarantor’s Obligations;
(b) insolvencyThe invalidity, bankruptcylack of priority, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all unenforceability in whole or any in part of Borrower's or Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantorany the Financing Documents;
(c) Any counter-claim, recoupment, setoff, reduction or defense based on any limitationclaim the Guarantor may have against the Lender, discharge, cessation, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of LenderBorrower, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any LiabilitiesObligor;
(d) any The voluntary or involuntary liquidation, dissolution, termination, merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any sale, lease, transfer, or other disposition of the Borrower or any or all of the assets of Borrower or GuarantorBorrower’s assets;
(e) Any bankruptcy, reorganization, insolvency, or similar proceedings for the relief of debtors under any assignment federal or other transfer, in whole state law by or in part, of Lender's interest in and rights under against the Loan Agreement Borrower or any other Loan Document, including this AgreementObligor, or of Lender's interest in the Liabilitiesany discharge, the Guaranty Obligationslimitation, modification, or release of liability of the CollateralBorrower or any Obligor arising out of any such proceedings;
(f) any claim, defense, counterclaim, Any event or set-off, other than (i) any defense matter to which the Guarantor has consented pursuant to under the terms of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;this Agreement; and
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any Any other action or circumstances circumstance that might otherwise constitute a defense available to, or a legal or equitable discharge ofdischarge, any release or defense of a guarantor (other than the Guarantor) or surety, guarantor whether similar or pledgor; or
(j) dissimilar to the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedforegoing.
Appears in 1 contract
Sources: Corporate Guaranty Agreement
Absolute Guaranty. The This Guaranty Obligations are is an absolute, unconditional and continuing guaranty of the immediate, direct, primaryfull and punctual payment of the Guaranteed Obligations, and absolute obligations of Guarantor, shall not the Guarantor guarantees that the Guaranteed Obligations will be subject to any condition precedent, and are independent of and not co-extensive paid strictly in accordance with the Liabilities. The Guaranty Obligations shall remain provisions of this Guaranty, in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following eventsevery case irrespective of:
(a) Lender's exercise the validity, legality, genuineness, regularity or enforcement ofenforceability of the Guaranteed Obligations, the Requirements Contract, the Note, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities this Guaranty or any powerother agreement or instrument relating thereto or any collateral therefor;
(b) any bankruptcy or insolvency of MPC or any other person or the dissolution or liquidation of MPC or any other person or the discharge of MPC’s or such person’s obligations in bankruptcy;
(c) any law, right, regulation or remedy order now or hereafter in effect in any jurisdiction affecting any of the terms or rights of OCP with respect to any of the Liabilities, the Collateral, this Guaranty or the Guaranty Obligations, including: obligations guaranteed hereunder;
(i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iiid) any change in the timeterm, manner, manner or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's the Guaranteed Obligations or Guarantor's assets, liquidation, winding-up, any amendment or dissolution waiver of Borrower or Guarantor;
(c) any limitation, discharge, cessation, or partial satisfaction consent to departure from any of the Liabilities or any Guaranty Guaranteed Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any Liabilities;
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any sale, lease, transfer, or other disposition of any or all of the assets of Borrower or Guarantor;
(e) any assignment failure to obtain any authorization or approval from or other transfer, in whole or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Document, including this Agreementaction by, or to notify or file with, any governmental authority required in Connection with the payment of Lender's interest in such Guaranteed Obligations by the Liabilities, the Guaranty Obligations, or the CollateralGuarantor;
(f) any claimchange in the name, defensestock ownership, counterclaimmembership, constitution or set-off, other than (i) any defense place of prior performance or (ii) any defense based on any applicable provision formation of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty ObligationsMPC, or the CollateralGuarantor, or any change of MPC, or the Guarantor into another form of business entity;
(g) any cancellation, renunciationtermination of the legal existence of MPC or the Guarantor, or surrender the termination of any debt instrument evidencing the Liabilities legal obligation of MPC or the Guaranty ObligationsGuarantor to discharge the Guaranteed Obligations undertaken or purported to be undertaken by it or on its behalf (other than that the Guaranteed Obligations have been paid or performed in accordance with their terms);
(h) Lender's vote, claim, distribution, election, acceptance, actionany inability to recover in full any of the moneys included in the Guaranteed Obligations by operation of law or for any other reason, or inaction in any bankruptcy impossibility or reorganization case related to the Collateralimpracticality of performance, the Liabilitiesillegality, force majeure, action or nonaction of government, or other circumstance that might otherwise constitute a legal or equitable defense available to, or resulting in the Guaranty Obligations;discharge of, a surety or guarantor (other than that the Guaranteed Obligations have been paid or performed in accordance with their terms); or
(i) any other action circumstance, event or circumstances happening whatsoever, whether foreseen or unforeseen and whether similar or dissimilar to anything referred to above in this Section 3, that might otherwise constitute a defense available toconstitutes, or a might be construed to constitute, an equitable or legal discharge of the MPC or equitable discharge of, the Guarantor with respect to the Guaranteed Obligations. This Guaranty is not conditioned upon any surety, guarantor or pledgor; or
(j) the fact requirement that OCP first attempt to collect any of the Liabilities Guaranteed Obligations from any other person or the Guaranty Obligations may become due resort to any collateral held as security or payable in connection with or by reason any other means of obtaining payment of any agreement of the Guaranteed Obligations. The obligations of the Guarantor under this Guaranty are independent of the obligations of MPC under the Requirements Contract and the Note, and a separate action or transaction that actions may be illegalbrought and prosecuted against the Guarantor to enforce this Guaranty, invalidirrespective of whether any action is brought against MPC or whether MPC is joined in any such action or actions. The Guarantor waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or unenforceable in whole enforcement thereof. Any payment by MPC or in part; it being agreed by Guarantor that other circumstance which operates to toll the Guaranty Obligations statute of limitations as to MPC shall not be discharged.operate to toll the statute of limitations as to the Guarantor,
Appears in 1 contract
Absolute Guaranty. The Guaranty Obligations are Guarantor agrees that the liability hereunder shall be the immediate, direct, primary, direct and absolute obligations primary obligation of Guarantor, Guarantor and shall not be subject to contingent upon Agent's exercise or enforcement of any condition precedentremedy it may have against Borrower or any other Person. Without limiting the generality of the foregoing, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, to and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor be exonerated or the Collateral be exonerated, discharged, or released discharged by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvencyInsolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assetsdeath, liquidation, winding-up, winding up or dissolution of Borrower Borrower, Guarantor or Guarantorany other guarantor of the Liabilities;
(cb) any Any limitation, discharge, cessation, discharge or partial satisfaction cessation of the Liabilities liability of Borrower, Guarantor or any Guaranty Obligations, whether by operation of other guarantor for the Liabilities due to any statute, regulation, regulation or rule of law, or otherwise, regardless of the intervention any invalidity or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, unenforceability in whole or in part, part of the Loan Agreement, this Agreement, any other Loan Document, Documents or any other document evidencing any guaranty of the Liabilities;
(dc) any Any merger, acquisition, consolidation or change in structure of Borrower Borrower, Guarantor or Guarantorany other guarantor of the Liabilities; or any sale, lease, transfer, transfer or other disposition of any or all of the assets or shares of Borrower Borrower, Guarantor or Guarantorany other guarantor of the Liabilities;
(ed) Any assignment or other transfer, in whole or in part, of Agent's or any Lender's interests in and rights under the Credit Agreement and this Guaranty, including, without limitation, Agent's right to receive payment of the Liabilities and the Guaranty Obligations; or any assignment or other transfer, in whole or in part, of LenderAgent's interest interests in and rights under the Loan Agreement or to any other Loan Document, including this Agreement, or of Lender's interest in collateral security securing the Liabilities, the Guaranty Obligations, or the Collateral;
(fe) any Any claim, defense, counterclaim, counterclaim or set-offsetoff, other than (i) any defense that of prior performance payment or (ii) performance, that Borrower, Guarantor or any defense based on any applicable provision other guarantor of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor Liabilities may have or assert, including including, but not limited to, any defense of incapacity, disability, incapacity or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, Obligations or any collateral security for the CollateralLiabilities;
(gf) any Any cancellation, renunciation, renunciation or surrender of any debt instrument evidencing the Liabilities Liabilities, other than due to the complete prior and indefeasible payment or performance of such instrument;
(g) Agent's amendment, modification, renewal or extension of any documents or agreements relating to the Credit Agreement, the Liabilities, the Guaranty ObligationsObligations or any other collateral security for the Liabilities, or Agent's exchange, release or waiver of any collateral security for the Liabilities;
(h) LenderAgent's exercise or non-exercise of any power, right or remedy with respect to the Liabilities, the Guaranty Obligations or any collateral security for the Liabilities, including, but not limited to, Agent's compromise, release, settlement or waiver with or of Borrower, Guarantor or any other Person;
(i) Agent's vote, claim, distribution, election, acceptance, action, action or inaction in any bankruptcy or reorganization case related to the CollateralLiabilities, the Guaranty Obligations or any collateral security for the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; orand
(j) the fact that Any impairment or invalidity of any of collateral security for the Liabilities or the Guaranty Obligations may become due any failure to perfect any of Agent's liens thereon or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedtherein.
Appears in 1 contract
Absolute Guaranty. The Guaranty Obligations are To the immediate, direct, primaryfullest extent permitted by Applicable Law, and absolute obligations except as limited by the express terms hereof, the liability of Guarantorthe Guarantor under this Guaranty shall be absolute, shall not be subject to any condition precedentunconditional and irrevocable irrespective of, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired Guarantor waives any right or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Lender's exercise or enforcement defense arising out of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action the lack of power or inaction authority of Lender the Guarantor to perfect, protect, execute and deliver this Guaranty or enforce any security interest in any Collateralof HQSub to execute and deliver the Agreement; (ii) the failure of 1014917.31-D.C. Server 1A - MSW HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into any impairment other corporation or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligationsother entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any security interest in or Lien upon the Collateralother business entity; or (iii) any change in the timedisposal, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, compositiontransfer, assignment for the benefit of creditors, appointment of a receiver or trustee for other disposition or all or any part of Borrower's the direct or Guarantor's assetsindirect interest of the Guarantor in HQSub; (iv) the bankruptcy, liquidationinsolvency, winding-updissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or dissolution its making of Borrower a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor;
, HQSub, as debtor, or HQSub’s trustee or receiver); (cv) any limitation, discharge, cessationfailure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation notice of any statutefailure on the part of HQSub to do any act or thing or to observe or perform any covenant, regulation, condition or rule of law, agreement by it to be observed or otherwise, regardless of performed under the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this AgreementGuaranty; (vi) the absence, impairment or loss of any other Loan Documentright of reimbursement, contribution or subrogation or any other document evidencing right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any Liabilities;
amendment, modification or extension of the Agreement; (dviii) any mergerassertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, acquisitioninterdict, consolidation condition, reduce or change in structure inhibit the ability of Borrower or the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or any sale, lease, transferwithout knowledge of the Beneficiary or the Guarantor) that constitutes, or other disposition of any might be construed to constitute, an equitable or all legal discharge or defense of the assets of Borrower or Guarantor;
(e) any assignment or other transferGuarantor under this Guaranty, in whole bankruptcy or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Documentinstance, including this Agreement, all defenses of a guarantor or of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsurety generally, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision full, final and indefeasible payment of the UCC requiring that Guaranteed Obligations by the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedand/or HQSub.
Appears in 1 contract
Sources: Transmission Service Agreement (Public Service Co of New Hampshire)
Absolute Guaranty. The Guarantor's obligations under this Guaranty Obligations are the immediateshall be absolute, direct, primarycontinuing, and absolute obligations of Guarantorunconditional, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard tountil irrevocable payment in full of all of the Indemnity Obligations, and shall not be impaired affected by any action taken or affected bynot taken by Purchaser, by any lack of prior enforcement or retention of any rights against Seller or Guarantor, by any illegality, unenforceability, or be deemed to be satisfied byinvalidity of the Indemnity Obligations or the Transaction Documents, nor shall by any other guaranty or other obligations, or by any other circumstance or condition (whether or not Guarantor or the Collateral be exoneratedAcquired Companies have any knowledge or notice thereof), dischargedincluding: (1) any termination, amendment, modification, or released byother change in, or supplement to, any of the following events:
Transaction Documents, or any furnishing or acceptance of additional security, or release of any security, for the obligations of Seller under the Transaction Documents; (a2) Lender's any failure, omission, or delay on the part of any Person to conform or comply with any term of any Transaction Document; (3) any waiver of the payment, performance, or observance of any of the obligations, conditions, covenants, or agreements contained in any Transaction Document or any other waiver, consent, extension, indulgence, compromise, settlement, release, or other action or inaction under or in respect of any Transaction Document, or any exercise or enforcement ofnon- exercise of any right or remedy under any Transaction Document or any obligation or liability of Purchaser or Seller, or failure any exercise or non-exercise of any right, remedy, power, or privilege under or in respect of any Transaction Document or any such obligation or liability; (4) any extension of time for payment or performance of any Indemnity Obligation; (5) any failure, omission, or delay in exercising on the part of Purchaser to enforce, assert, or enforcingexercise any right, legal proceedings to collect the Liabilities or any power, right, or remedy conferred on it in connection with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Transaction Document, or any other agreement action on the part of Purchaser; (7) any voluntary or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, involuntary bankruptcy, reorganization, arrangement, adjustment, compositioninsolvency, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assetsreceivership, conservatorship, custodianship, liquidation, winding-upmarshalling of assets and liabilities, or dissolution of Borrower or similar proceeding with respect to Purchaser, Guarantor;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceabilityother Person or any of their respective properties or creditors, or irregularity, or future change to or amendment of, the disaffirmance in whole or in part, part of any of the Loan Agreement, this Agreement, Transaction Documents in any other Loan Documentsuch proceeding, or any action taken by any trustee or receiver or by any court in any such proceeding; (8) any limitation on Purchaser's liability or obligations (or the liabilities and obligations of any other document evidencing any Liabilities;
(dPerson) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any saledischarge, leasetermination, transfercancellation, frustration, irregularity, invalidity, or other disposition of any or all of the assets of Borrower or Guarantor;
(e) any assignment or other transferunenforceability, in whole or in part, of Lender's interest in and rights under any of the Loan Agreement Transaction Documents; (9) any merger or consolidation of Purchaser into or with any other corporation, or any other Loan Documentsale, including this Agreementlease, or other transfer of Lender's interest any of the assets of Purchaser to any other Person or any change in the Liabilitiesownership of Purchaser or in the control of Purchaser; (10) to the extent permitted by law, any release or discharge, by operation of law, of Guarantor from the Guaranty Obligationsperformance or observance of any obligation, covenant, or the Collateral;
agreement contained in this Guaranty; and (f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i12) any other action condition or circumstances that circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge ofdischarge, release, or defense of a surety or guarantor, or which might otherwise limit recourse against Guarantor, including any suretydischarge, guarantor release, defense, or pledgor; or
(j) the fact that limitation arising out of any laws of the Liabilities United States of America or any state thereof or any other Government Authority having authority over the same which would exempt, modify, or delay the due or punctual payment and performance of the obligations of Guarantor hereunder. Subject to paragraph (e) below, the obligations of Guarantor hereunder are not dischargeable except by payment. No failure or delay in exercising any right under this Guaranty shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the Guaranty Obligations may become due or payable in connection with or by reason exercise of any agreement other right of Seller under this Guaranty or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedTransaction Documents.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Us 1 Industries Inc)
Absolute Guaranty. The Guaranty Obligations are Guarantor agrees that the liability hereunder shall be the immediate, direct, primary, and absolute obligations primary obligation of Guarantor, Guarantor and shall not be subject to contingent upon Lenders' or Agent's exercise or enforcement of any condition precedentremedy they may have against Borrower or any other Person, and are independent or against the Collateral or any security for the Guaranty Obligations. Without limiting the generality of and not co-extensive with the Liabilities. The foregoing, the Guaranty Obligations shall remain in full force and effect without regard to, to and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor be exonerated or the Collateral be exonerated, discharged, or released discharged by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency6.1 Insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, winding-up, winding up or dissolution of Borrower Borrower, Guarantor or Guarantorany other guarantor of the Liabilities;
(c) any 6.2 Any limitation, discharge, cessation, or partial satisfaction cessation of the Liabilities liability of Borrower, Guarantor or any Guaranty Obligations, whether by operation of other guarantor for the Liabilities due to any statute, regulation, regulation or rule of law, or otherwise, regardless of the intervention any invalidity or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, unenforceability in whole or in part, part of the Loan Agreement, this Agreement, any other Loan Document, documents evidencing the Liabilities or any other document evidencing any guaranty of the Liabilities;
(d) any 6.3 Any merger, acquisition, consolidation or change in structure of Borrower Borrower, Guarantor or Guarantor; any other guarantor of the Liabilities or any sale, lease, transfer, transfer or other disposition of any or all of the assets or shares of Borrower Borrower, Guarantor or Guarantorany other guarantor of the Liabilities;
(e) 6.4 Any assignment or other transfer, in whole or in part, of any Lender's or Agent's interests in and rights under this Guaranty, the Loan Agreement or any of the other Loan Documents, including, without limitation, any Lender's or Agent's right to receive payment of the Liabilities or the Guaranty Obligations, as the case may be, or any assignment or other transfer, in whole or in part, of LenderAgent's interest interests in and rights under to the Loan Agreement Collateral or any other Loan Document, including this Agreement, or of Lender's interest in the Liabilities, collateral securing the Guaranty Obligations, or the Collateral;
(f) any 6.5 Any claim, defense, counterclaim, counterclaim or set-offsetoff, other than (i) any defense that of prior performance performance, that Borrower, Guarantor or (ii) any defense based on any applicable provision other guarantor of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor Liabilities may have or assert, including including, but not limited to, any defense of incapacity, disability, incapacity or lack of corporate or other authority to execute any documents relating to the Liabilities, the Collateral, the Guaranty Obligations, Obligations or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or collateral securing the Guaranty Obligations;
(h) 6.6 Any Lender's voteor Agent's amendment, claimmodification, distributionrenewal, electionextension, acceptancecancellation or surrender of any agreement, actiondocument or instrument relating to the Loan Agreement, or inaction in any bankruptcy or reorganization case related to the Liabilities, the Collateral, the LiabilitiesGuaranty Obligations or any collateral securing the Guaranty Obligations, or any Lender's or Agent's exchange, release, or waiver of any Collateral or of any collateral securing the Guaranty Obligations;
(i) 6.7 Lenders' or Agent's exercise or nonexercise of any other action power, right or circumstances that might otherwise constitute a defense available toremedy with respect to the Liabilities, or a legal or equitable discharge ofthe Collateral, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection any collateral securing the Guaranty Obligations, including, but not limited to, Lenders' or Agent's compromise, release, settlement or waiver with or by reason of Borrower, Guarantor or any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be discharged.other Person;
Appears in 1 contract
Absolute Guaranty. The Guaranty Obligations are the immediate, direct, primary, and absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full ----------------- force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall and no Guarantor or the any Collateral shall be exonerated, discharged, or released by, any of the following events:
(a) LenderBank's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities Obligations or the Guaranty Obligations or any power, right, or remedy with respect to any of the LiabilitiesObligations, the Collateral, Guaranty Obligations or the Guaranty ObligationsCollateral, including: (iI) any action or inaction of Lender Bank to perfect, protect, or enforce any security interest in Lien upon any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of LenderBank's right to enforce against Borrower Borrower, any LiabilitiesGuarantor, or any other guarantor of the Obligations, any Obligations, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities Obligations or the Guaranty Obligations, or any other amendment to to, or waiver of of, the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities Obligations or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or any Guarantor's assetsassets or of the assets of any other guarantor of the Obligations, liquidation, winding-up, or dissolution of Borrower Borrower, any Guarantor, or Guarantorany other guarantor of the Obligations;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Obligations, the Guaranty Obligations, or the obligations of any other guarantor of the Obligations (except as provided in subparagraphs f(i) or (ii) of this Section 2.2), whether by operation of any statute, regulation, or rule ----------- of law, or otherwise, regardless of the intervention or omission of LenderBank, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this AgreementGuaranty, any other Loan Document, or any other document evidencing any LiabilitiesObligations or Guaranty Obligations;
(di) any merger, acquisition, consolidation or change in structure of Borrower Borrower, any Guarantor, or Guarantorany other guarantor of the Obligations; or (ii) any sale, lease, transfer, or other disposition of any or all of the assets or Stock of Borrower, any Guarantor, or any other guarantor of the Obligations, including any transfer by Borrower of all or Guarantorany part of any Collateral in which Bank has been granted a Lien pursuant to the Loan Documents; or (iii) termination of Borrower's existence for any reason;
(e) any assignment or other transfer, in whole or in part, of LenderBank's interest in and rights under the Loan Agreement or any other Loan Document, including this AgreementGuaranty, or of LenderBank's interest in the LiabilitiesObligations, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsetoff that Borrower, any Guarantor, or any other guarantor of the Obligations may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Obligations, the Guaranty Obligations, the Collateral, or any other guaranty of the Obligations, other than (i) any upon the occurrence of the Guaranty Termination Date, the defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any pledge, guaranty, or any debt instrument evidencing the Liabilities Obligations or the Guaranty Obligations;
(h) LenderBank's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the CollateralObligations, the LiabilitiesGuaranty Obligations, or the Guaranty ObligationsCollateral;
(i) any other action or circumstances circumstance that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgorpledgor (except as provided in subparagraphs f(i) or (ii) of this Section 2.2); oror -----------
(j) the fact that any of the Liabilities Obligations or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by each Guarantor that the Guaranty Obligations shall not be dischargeddischarged until the Guaranty Termination Date.
Appears in 1 contract
Sources: Continuing Guaranty (Polyphase Corp)
Absolute Guaranty. The Guaranty Obligations are Guarantor agrees that the liability hereunder shall be the immediate, direct, primary, and absolute obligations primary obligation of Guarantor, Guarantor and shall not be subject to contingent upon Lender’s exercise or enforcement of any condition precedentright, and are independent power or remedy it may have against Company or any other Person. Without limiting the generality of and not co-extensive with the Liabilities. The foregoing, the Guaranty Obligations shall remain in full force and effect without regard to, to and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor be exonerated or the Collateral be exonerated, discharged, or released discharged from its obligations hereunder by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvencyInsolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, winding-up, winding up or dissolution of Borrower Company or Guarantor;
(cb) any Any limitation, discharge, cessation, or partial satisfaction cessation of the Liabilities liability of Company or any Guaranty Obligations, whether by operation of Guarantor due to any statute, regulation, regulation or rule of law, or otherwise, regardless of the intervention any invalidity or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, unenforceability in whole or in part, part of the Loan Agreement, this Agreement, any other Loan Document, or any other document documents evidencing any Liabilitiesthe Guaranty Obligations;
(dc) any Any merger, acquisition, consolidation or change in structure of Borrower Company (other than upon the Closing, as such term is defined in the Acquisition Agreement dated December 15, 2004 among Lender, Company and Guarantor (the “Acquisition Agreement”)) or Guarantor; Guarantor or any sale, lease, transfer, transfer or other disposition of any or all of the assets or equity interests of Borrower Company or Guarantor;
(ed) any Any assignment or other transfer, in whole or in part, of Lender's interest ’s interests in and rights under the Loan Agreement or this Guaranty, including, without limitation, Lender’s right to receive payment of any other Loan Document, including this Agreement, or portion of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(fe) any Any claim, defense, counterclaimcounterclaim or setoff, or set-off, any defense (other than (i) any defense that of prior complete performance or (ii) any defense based on any applicable provision of the UCC requiring hereunder), that the Collateral be disposed of in a commercially reasonable manner, which Borrower Company or Guarantor may have or assert, including including, but not limited to, any defense of incapacity, disability, incapacity or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, Lender’s exercise or surrender nonexercise of any debt instrument evidencing the Liabilities power, right or remedy with respect to the Guaranty Obligations;, including, but not limited to, Lender’s compromise, release, settlement or waiver with or of Company or any other Person (other than the Guarantor); or
(h) Lender's voteAny other invalidity, claim, distribution, election, acceptance, action, irregularity or inaction in unenforceability of all or any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any part of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedother security therefor.
Appears in 1 contract
Sources: Guaranty (@Road, Inc)
Absolute Guaranty. The Guaranty Obligations are Guarantor agrees that the liability hereunder shall be the immediate, direct, primary, and absolute obligations primary obligation of Guarantor, and shall not be subject to contingent upon the Lenders’ or the Administrative Agent’s exercise or enforcement of any condition precedentremedy they or it may have against either of the Borrower or any other Person or any other guarantor of the Obligations, and are independent or against the Collateral or any other collateral securing the Guaranty Obligations. Without limiting the generality of and not co-extensive with the Liabilities. The foregoing, the Guaranty Obligations shall remain in full force and effect without regard to, to and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor be exonerated or the Collateral be exonerated, discharged, or released discharged by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvencyInsolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, winding-up, winding up or dissolution of the Borrower, Guarantor or any other guarantor of the Obligations;
(b) Any limitation, discharge, or cessation of the liability of the Borrower (other than by the final payment in full in cash of the Obligations pursuant to the Credit Agreement), Guarantor or Guarantorany other guarantor of the Obligations due to any regulation, code, ordinance, order, decree, judgment, injunction, notice or binding agreement issued, promulgated or entered into by any Governmental Authority or arbitrator, or any invalidity or unenforceability in whole or in part of the Loan Documents or any other documents evidencing the Obligations or any other guaranty of the Obligations;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any Liabilities;
(d) any Any merger, acquisition, consolidation or change in structure of Borrower the Borrower, Guarantor or Guarantor; any other guarantor of the Obligations or any sale, lease, transfer, transfer or other disposition of any or all of the assets or equity interests of Borrower the Borrower, Guarantor or Guarantorany other guarantor of the Obligations;
(ed) Any assignment or other transfer, in whole or in part, of any Lender’s or the Administrative Agent’s interests in and rights under this Guaranty, the Credit Agreement or any of the other Loan Documents, including the right to receive payment of the Obligations or the Guaranty Obligations, as the case may be, or any assignment or other transfer, in whole or in part, of any Lender's interest ’s or the Administrative Agent’s Lien on or in and rights under the Loan Agreement Collateral or any other Loan Document, including this Agreement, or of Lender's interest in the Liabilities, collateral securing the Guaranty Obligations, or the Collateral;
(fe) any Any claim, defense, counterclaim, counterclaim or set-off, setoff (other than (i) any defense of prior performance or (ii) any defense based on any applicable provision by the final payment in full in cash of the UCC requiring Obligations pursuant to the Credit Agreement) that the Collateral be disposed Borrower, Guarantor or any other guarantor of in a commercially reasonable manner, which Borrower or Guarantor the Obligations may have or assert, including including, but not limited to, any defense of incapacity, disability, incapacity or lack of corporate or other authority to execute any documents relating to the LiabilitiesObligations, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or other collateral securing the Guaranty Obligations;
(f) Any amendment, modification, renewal, extension, cancellation or surrender of any Loan Document or agreement, document or instrument relating to the Credit Agreement, the Obligations, the Collateral or the Guaranty Obligations or any exchange, release, or waiver of any Collateral or of any other collateral securing the Guaranty Obligations;
(g) Any Lender’s or the Administrative Agent’s exercise or nonexercise of any power, right or remedy with respect to the Obligations, the Collateral, the Guaranty Obligations or any other collateral securing the Guaranty Obligations, including, but not limited to, the compromise, release, settlement or waiver with or of the Borrower, Guarantor or any other Person;
(h) Any Lender's ’s or the Administrative Agent’s vote, claim, distribution, election, acceptance, action, action or inaction in any bankruptcy case or reorganization case similar insolvency proceeding related to the Obligations, the Collateral, the Liabilities, Guaranty Obligations or any other collateral securing the Guaranty Obligations;; and
(i) Any impairment or invalidity of the Collateral, or any other action collateral securing the Guaranty Obligations or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that failure to perfect any of the Liabilities Administrative Agent’s or the Guaranty Obligations may become due any Lender’s Liens thereon or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedtherein.
Appears in 1 contract
Absolute Guaranty. The Guarantor's liabilities and obligations under ------------------ this Guaranty Obligations are the immediate, direct, primary, shall be absolute and absolute obligations of Guarantorunconditional irrespective of, shall not be subject to any condition precedentreleased, impaired, limited, reduced, conditioned upon or otherwise affected by and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without regard tolimitation, any one or more of the following events specified in clauses (a) through (o) of this Paragraph 4 below, and neither Administrative Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not be impaired have any liability, obligation or affected byduty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor that all of such liabilities, obligations and duties (if any) of Administrative Agent or be deemed any Lender otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to be satisfied byeliminate, nor shall impair, condition or restrict the liabilities and obligations of Guarantor or for the Collateral be exoneratedGuaranteed Obligations, discharged, or released by, any of the following eventsare hereby expressly waived by Guarantor:
(a) Lender's exercise the taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of compliance with the Loan Credit Agreement, any Note or any other Loan Document, or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligationsnotification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(be) insolvency, the bankruptcy, reorganizationinsolvency, arrangement, adjustment, composition, assignment liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Borrower, Guarantor or any other Person at any time liable or obligated for the benefit payment of creditorsany or all of the Guaranteed Obligations, appointment whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of a receiver or trustee for all the payment or any part other terms or provisions of Borrower's any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor's assets, liquidation, winding-up, or dissolution of any adjustment, indulgence, forbearance or compromise that might be granted or given by Administrative Agent or any Lender to Borrower or Guarantor;
(cg) any limitationneglect, dischargedelay, cessationomission, failure or partial satisfaction refusal of Administrative Agent or any Lender (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the Liabilities Guaranteed Obligations or the collection thereof or any Guaranty Obligationscollateral, security or guaranty therefor, whether by operation of under the Credit Agreement, any statute, regulation, Note or rule of law, any other Loan Document or otherwise, regardless including, without limitation, to ensure compliance with any term or provision of the intervention Credit Agreement or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document evidencing or instrument or arrangement evidencing, securing or otherwise affecting all or any Liabilitiespart of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(dh) any failure of Administrative Agent or any Lender to give notice to Borrower and/or Guarantor of, or obtain the consent of Borrower and/or Guarantor with respect to,(i) the incurrence of any of the Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Credit Agreement or any of the other Loan Document, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (vi) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by Administrative Agent or any Lender against Borrower, it being agreed that (except as may be expressly provided in the other Loan Documents) neither Administrative Agent nor any Lender shall be required to give Borrower or Guarantor any notice of any kind or to obtain Borrower's or Guarantor's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of (i) failure of consideration, (ii) breach of warranty, (iii) the act of creating the Guaranteed Obligations or any part thereof is ultra ▇▇▇▇▇, (iv) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (v) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (vi) failure to comply with the statute of frauds;
(j) any payment by Borrower to Administrative Agent or any Lender is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason Administrative Agent or any Lender is required to refund such payment or pay such amount to Borrower or any other Person;
(k) any merger, acquisitionreorganization, consolidation or change in structure dissolution of Borrower or Guarantor; or Borrower, any sale, lease, transfer, lease or other disposition transfer of any or all of the assets of Borrower Borrower, or Guarantorany change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Borrower;
(el) any assignment failure of Administrative Agent or any Lender to notify Guarantor of (i)the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any existing or future offset, claim or defense of Borrower against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any full or partial release of the liability of Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other transferPerson for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to pay the Guaranteed Obligations in whole full without assistance or in partsupport, whether from Borrower, any other guarantor or any other Person; or
(o) any other action taken or omitted to be taken with respect to any of Lender's interest in and rights under the Loan Agreement Credit Agreement, any Note or any other Loan Document, including the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the Guaranteed Obligations pursuant to the terms hereof. Without limiting the foregoing or Guarantor's liability under this AgreementGuaranty, to the extent that Administrative Agent and Lenders (or any of Lender's interest them) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in the Liabilities, amounts and at the Guaranty Obligations, times required or the Collateral;
(f) any claim, defense, counterclaim, provided by or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with the Credit Agreement, any Notes or by reason of any agreement or transaction that may be illegalother Loan Document, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedis absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. The Guarantor's liabilities and obligations under this Guaranty Obligations are the immediate, direct, primary, shall be absolute and absolute obligations of Guarantorunconditional irrespective of, shall not be subject to any condition precedentreleased, impaired, limited, reduced, conditioned upon or otherwise affected by and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without regard tolimitation, any one or more of the following events specified in clauses (a) through (n) of this Paragraph 4 below, and neither Administrative Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not be impaired have any liability, obligation or affected byduty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor that all of such liabilities, obligations and duties (if any) of Administrative Agent or be deemed any Lender otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to be satisfied byeliminate, nor shall impair, condition or restrict the liabilities and obligations of Guarantor or for the Collateral be exoneratedGuaranteed Obligations, discharged, or released by, any of the following eventsare hereby expressly waived by Guarantor:
(a) Lender's exercise the taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of the Loan Agreement, compliance with any Note or any other Loan DocumentDocument (other than the Credit Agreement to which the Guarantor is a party), or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligationsnotification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(be) insolvency, the bankruptcy, reorganizationinsolvency, arrangement, adjustment, composition, assignment liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Borrower, Guarantor or any other Person at any time liable or obligated for the benefit payment of creditorsany or all of the Guaranteed Obligations, appointment whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of a receiver or trustee for all the payment or any part other terms or provisions of Borrower's any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor's assets, liquidation, winding-up, or dissolution of any adjustment, indulgence, forbearance or compromise that might be granted or given by Administrative Agent or any Lender to Borrower or Guarantor;
(cg) any limitationneglect, dischargedelay, cessationomission, failure or partial satisfaction refusal of Administrative Agent or any Lender (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the Liabilities Guaranteed Obligations or the collection thereof or any Guaranty Obligationscollateral, security or guaranty therefor, whether by operation of under the Credit Agreement, any statute, regulation, Note or rule of law, any other Loan Document or otherwise, regardless including, without limitation, to ensure compliance with any term or provision of the intervention Credit Agreement or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document evidencing or instrument or arrangement evidencing, securing or otherwise affecting all or any Liabilitiespart of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(dh) any failure of Administrative Agent or any Lender to give notice to Borrower and/or Guarantor of, or obtain the consent of Borrower and/or Guarantor with respect to, (i) the incurrence of any of the Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Credit Agreement or any of the other Loan Document, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (vi) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by Administrative Agent or any Lender against Borrower, it being agreed that (except as may be expressly provided in the other Loan Documents) neither Administrative Agent nor any Lender shall be required to give Borrower or Guarantor any notice of any kind or to obtain Borrower's or Guarantor's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra ▇▇▇▇▇, (vi) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vii) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, (viii) expiration of the applicable statute of limitations of the Guaranteed Obligations, (ix) failure to comply with the statute of frauds, (x) lender liability, or (xi) accord and satisfaction;
(j) any payment by Borrower to Administrative Agent or any Lender is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason Administrative Agent or any Lender is required to refund such payment or pay such amount to Borrower or any other Person;
(k) any merger, acquisitionreorganization, consolidation or change in structure dissolution of Borrower or Guarantor; or Borrower, any sale, lease, transfer, lease or other disposition transfer of any or all of the assets of Borrower Borrower, or Guarantorany change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Borrower;
(el) any assignment failure of Administrative Agent or any Lender to notify Guarantor of (i) the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any full or partial release of the liability of Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other transferPerson for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to pay the Guaranteed Obligations in whole full without assistance or in partsupport, whether from Borrower, any other guarantor or any other Person; or
(n) any other action taken or omitted to be taken with respect to any of Lender's interest in and rights under the Loan Agreement Credit Agreement, any Note or any other Loan Document, including the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the Guaranteed Obligations pursuant to the terms hereof. Without limiting the foregoing or Guarantor's liability under this AgreementGuaranty, to the extent that Administrative Agent and Lenders (or any of Lender's interest them) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in the Liabilities, amounts and at the Guaranty Obligations, times required or the Collateral;
(f) any claim, defense, counterclaim, provided by or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with the Credit Agreement, any Notes or by reason of any agreement or transaction that may be illegalother Loan Document, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedis absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. The Guaranty Obligations are Pledgor agrees that the liability hereunder shall be the immediate, direct, primary, and absolute obligations primary obligation of Guarantor, Pledgor and shall not be subject to contingent upon Banks’ or Agent’s exercise or enforcement of any condition precedentremedy it may have against Borrower or any other Person, and are independent or against the Pledged Collateral. Without limiting the generality of and not co-extensive with the Liabilities. The foregoing, the Guaranty Obligations shall remain in full force and effect without regard to, to and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor Pledgor be exonerated or the Collateral be exonerated, discharged, or released discharged by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvencyInsolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assetsdeath, liquidation, winding-up, winding up or dissolution of Borrower Borrower, Pledgor or Guarantorany other guarantor of the Guaranty Obligations;
(cb) any Any limitation, discharge, cessation, or partial satisfaction cessation of the Liabilities liability of Borrower, Pledgor or any other guarantor for the Guaranty Obligations, whether by operation of Obligations due to any statute, regulation, or rule of law, or otherwise, regardless of the intervention any invalidity or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, unenforceability in whole or in part, part of the Loan Agreement, this Agreement, any other Loan Document, Documents or any other document evidencing any Liabilitiesguaranty of the Guaranty Obligations;
(dc) any Any amalgamation, merger, acquisition, consolidation or change in structure of Borrower Borrower, Pledgor or Guarantorany other guarantor of the Guaranty Obligations; or any sale, lease, transfer, or other disposition of any or all of the assets or shares of Borrower Borrower, Pledgor or Guarantorany other guarantor of the Guaranty Obligations;
(ed) Any assignment or other transfer, in whole or in part, of Banks’ and Agent’s interests in and rights under the Credit Agreement, any Hedging Agreement and this Pledge Agreement, including, without limitation, Banks’ and Agent’s right to receive payment of the Guaranty Obligations and the Guaranty Obligations; or any assignment or other transfer, in whole or in part, of Lender's interest Banks’ and Agent’s interests in and rights under to the Loan Agreement Collateral, the Pledged Collateral, or any other Loan Document, including this Agreement, or of Lender's interest in the Liabilities, collateral security securing the Guaranty Obligations, Obligations or the CollateralTransferred Assets;
(fe) any Any claim, defense, counterclaim, or set-offsetoff, other than (i) any defense that of prior performance payment or (ii) performance, that Borrower, Pledgor or any defense based on any applicable provision other guarantor of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor Guaranty Obligations may have or assert, including including, but not limited to, any defense of incapacity, disability, incapacity or lack of corporate or other authority to execute any documents relating to the LiabilitiesGuaranty Obligations, the Guaranty Obligations or the Collateral, the Pledged Collateral, or any other collateral security for the Guaranty Obligations, or the CollateralTransferred Assets;
(gf) any Any cancellation, renunciation, renunciation or surrender of any debt instrument evidencing the Liabilities Guaranty Obligations, other than due to the complete prior and indefeasible payment or performance of such instrument;
(g) Banks’ or Agent’s amendment, modification, renewal or extension of any documents or agreements relating to the Credit Agreement, the Guaranty Obligations, the Guaranty Obligations, the Collateral, the Pledged Collateral, any Hedging Agreement, or any other collateral security for the Guaranty Obligations, the Transferred Assets, or Banks’ and Agent’s exchange, release, or waiver of any of the Pledged Collateral or any other collateral security for the Guaranty Obligations;
(h) Lender's Banks’ or Agent’s exercise or non-exercise of any power, right or remedy with respect to the Guaranty Obligations, the Guaranty Obligations, the Collateral, the Pledged Collateral, any other collateral security for the Guaranty Obligations, or the Transferred Assets, including, but not limited to, Banks’ compromise, release, settlement or waiver with or of Borrower, Pledgor or any other Person;
(i) Banks’ or Agent’s vote, claim, distribution, election, acceptance, action, action or inaction in any bankruptcy or reorganization case related to the Guaranty Obligations, the Guaranty Obligations, the Collateral, the LiabilitiesPledged Collateral, any other collateral security for the Guaranty Obligations, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgorTransferred Assets; or
(j) the fact that any Any impairment or invalidity of the Liabilities Collateral, the Pledged Collateral or any other collateral security for the Guaranty Obligations may become due or payable in connection with any failure to perfect any of Banks’ and Agent’s Liens thereon or by reason therein or any impairment or invalidity of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedtransfer of the Transferred Assets.
Appears in 1 contract
Absolute Guaranty. The Guaranty Obligations are the immediate, direct, primary, and absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain ----------------- in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released (by virtue of the provisions of Sections 2809, 2819, 2845, 2848, 2849 or 2850 of the California Civil Code or any other law, rule, arrangement or relationship) by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities Obligations or the Guaranty Obligations or any power, right, or remedy with respect to any of the Liabilities, the Collateral, Obligations or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce enforce, against Borrower or Guarantor, any Liabilities, Obligations or any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iiiii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty ObligationsObligation, or any other amendment to to, or waiver of of, the Loan Agreement, any other Loan Document, Note or any other agreement or instrument governing or evidencing any of the Liabilities Obligations or the Guaranty Obligations;
(b) any insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantor;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities Obligations or any the Guaranty Obligations, whether by operation of any statute, regulation, regulation or rule of law, or otherwise, otherwise (but other than full satisfaction by timely payment of all obligations guaranteed hereby) regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan AgreementNote, this Agreement, any other Loan DocumentGuaranty, or any other document evidencing any LiabilitiesObligations or Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower Borrower, or Guarantor; or any sale, lease, transfer, or other disposition of any or all of the assets or shares of Borrower or Guarantor;
(e) any assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan DocumentNote, including this AgreementGuaranty, or of Lender's interest in the Liabilities, Obligations or the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-offsetoff including, other than (i) but not limited to, any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, Obligations or the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt security or instrument at any time evidencing the Liabilities Obligations or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, Obligations or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities Obligations or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; , it being agreed by each Guarantor that the Guaranty Obligations shall not be dischargeddischarged until the Guaranty Termination Date (and then after the Guaranty Termination Date, the Guaranty Obligations shall be subject to reinstatement under Section 5).
Appears in 1 contract
Absolute Guaranty. The Guaranty Obligations Liabilities are the immediate, direct, primary, and absolute obligations of GuarantorGuarantors, shall not be subject to any condition precedent, and are independent of and not co-extensive with the LiabilitiesObligations. The Guaranty Obligations Liabilities shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor Guarantors or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) LenderAgent's or any Bank's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities Obligations or any power, right, or remedy with respect to any of the LiabilitiesObligations, the Collateral, or the Guaranty Obligations, Liabilities including: (i) any action or inaction of Lender Agent or any Bank to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of LenderAgent's or any Bank's right to enforce against Borrower or any other guarantor of the Obligations, any Obligations, any Guaranty Liabilities, any Guaranty Obligationsother obligations, or any security interest in or Lien lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities Obligations or the Guaranty ObligationsLiabilities, or any other amendment to or waiver of the Loan Revolving Credit Agreement, any other Loan Related Document, or any other agreement or instrument governing or evidencing any of the Liabilities Obligations or the Guaranty ObligationsLiabilities;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assetsGuarantors' assets or of the assets of any other guarantor of the Obligations, liquidation, winding-up, or dissolution of Borrower or GuarantorGuarantors or any other guarantor of the Obligations;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or Obligations, of any Guaranty Liabilities, or of the obligations of any other guarantor of the Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of LenderAgent or any Bank, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Revolving Credit Agreement, this AgreementGuaranty, any other Loan Related Document, or any other document evidencing any LiabilitiesObligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower or GuarantorGuarantor or any guarantor of the Obligations; or any sale, lease, transfer, or other disposition of any or all of the assets or shares of Borrower or GuarantorGuarantors or any other guarantor of the Obligations;
(e) any assignment or other transfer, in whole or in part, of LenderAgent's or any Bank's interest in and rights under the Loan Revolving Credit Agreement or any other Loan Related Document, including this AgreementGuaranty, or of LenderAgent's or any Bank's interest in the LiabilitiesObligations, the Guaranty ObligationsLiabilities, or the Collateral;
(f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower Borrower, Guarantors, or Guarantor any other guarantor of the Obligations may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Obligations, the Guaranty Liabilities, the Guaranty ObligationsCollateral, or any other guaranty of the CollateralObligations;
(g) any cancellation, renunciation, or surrender of any pledge, guaranty, or any debt instrument evidencing the Liabilities Obligations or the Guaranty ObligationsLiabilities;
(h) LenderAgent's or any Bank's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the LiabilitiesObligations, or the Guaranty ObligationsLiabilities;
(i) Obligations arising under the Revolving Credit Agreement as a result of the Bonding Company's borrowing Revolving Loans pursuant to its rights to do so, for the account of the Borrower, under Section 2.22 of the Revolving Credit Agreement;
(j) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(jk) the fact that any of the Liabilities Obligations or the Guaranty Obligations Liabilities may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor Guarantors that the Guaranty Obligations Liabilities shall not be discharged.
Appears in 1 contract
Sources: Guaranty (Morrison Knudsen Corp)
Absolute Guaranty. The Guaranty Obligations are the immediate, direct, primary, and absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall any Guarantor or the any Pledged Collateral be exonerated, discharged, or released by, any of the following events:
(a) LenderLLCP's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities Obligations to LLCP or the Guaranty Obligations or any power, right, or remedy with respect to any of the LiabilitiesObligations to LLCP, the Collateral, Guaranty Obligations or the Guaranty ObligationsPledged Collateral, including: (i) any action or inaction of Lender LLCP to perfect, protect, or enforce any security interest in Lien upon any Pledged Collateral; (ii) any impairment or invalidity of the Pledged Collateral or any suspension of LenderLLCP's right to enforce against Borrower the Company, any LiabilitiesGuarantor or any other guarantor of the Obligations to LLCP, any Obligations to LLCP, any Guaranty Obligations, or any security interest in or Lien upon the Pledged Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty ObligationsObligations to LLCP, or any other amendment to to, or waiver of of, the Loan April 1999 SPA, the April 1999 Note, this Agreement, any other Loan Documentthe Pledge Agreements, or any other agreement or instrument governing or evidencing any of the Liabilities Obligations to LLCP or the Guaranty Obligations;
(b) any insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrowerthe Company's or any Guarantor's assetsassets or of the assets of any other guarantor of the Obligations to LLCP, liquidation, winding-up, or dissolution of Borrower the Company, any Guarantor, or Guarantorany other guarantor of the Obligations;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Obligations to LLCP, the Guaranty Obligations, or the obligations of any other guarantor of the Obligations to LLCP, whether by operation of any statute, regulation, or rule of law, or otherwiseotherwise (but other than full satisfaction), regardless of the intervention or omission of LenderLLCP, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan AgreementApril 1999 SPA, the April 1999 Note, this Agreement, any other Loan Documentthe Pledge Agreements, or any other document evidencing any LiabilitiesObligations to LLCP or Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower the Company, any Guarantor, or Guarantorany other guarantor of the Obligations to LLCP; or any sale, lease, transfer, or other disposition of any or all the assets or shares of the assets Company, any Guarantor, or any other guarantor of Borrower or Guarantorthe Obligations to LLCP;
(e) any assignment or other transfer, in whole or in part, of LenderLLCP's interest in and rights under the Loan April 1999 SPA, April 1999 Note, this Agreement or any other Loan Documentthe Pledge Agreements, including this AgreementGuaranty, or of LenderLLCP's interest in the LiabilitiesObligations to LLCP, the Guaranty Obligations, or the Pledged Collateral;
(f) any claim, defense, counterclaim, or set-offsetoff, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC Code requiring that the Pledged Collateral be disposed of in a commercially reasonable manner, which Borrower claim, defense counterclaim or Guarantor setoff the Company, any Guarantor, or any other guarantor of the Obligations may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the LiabilitiesObligations to LLCP, the Guaranty Obligations, the Pledged Collateral, or any other guaranty of the CollateralObligations to LLCP;
(g) any cancellation, renunciation, or surrender of any pledge, guaranty, or any debt instrument evidencing the Liabilities Obligations to LLCP or the Guaranty Obligations;
(h) LenderLLCP's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the CollateralObligations to LLCP, the LiabilitiesGuaranty Obligations, or the Guaranty ObligationsCollateral;
(i) any other action or circumstances circumstance that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities Obligations to LLCP or the Guaranty Obligations may become due or payable in connection with with, or by reason of of, any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; , it being agreed by each Guarantor that the Guaranty Obligations shall not be dischargeddischarged until the Guaranty Termination Date (and then after the Guaranty Termination Date, the Guaranty Obligations shall be subject to reinstatement under Section 4.14).
Appears in 1 contract
Sources: Investment Agreement (Levine Leichtman Capital Partners Ii Lp)
Absolute Guaranty. The Guarantor's liabilities and obligations under this Guaranty Obligations are the immediate, direct, primary, shall be absolute and absolute obligations of Guarantorunconditional irrespective of, shall not be subject to any condition precedentreleased, impaired, limited, reduced, conditioned upon or otherwise affected by and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in paragraph 3 hereof) at any time or from time to time, including, without regard tolimitation, any one or more of the following events specified in clauses (a) through (o) of this paragraph 4 below, and neither Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not be impaired have any liability, obligation or affected byduty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor that all of such liabilities, obligations and duties (if any) of Agent or be deemed any Lender otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to be satisfied byeliminate, nor shall impair, condition or restrict the liabilities and obligations of Guarantor or for the Collateral be exoneratedGuaranteed Obligations, discharged, or released by, any of the following eventsare hereby expressly waived by Guarantor:
(a) Lender's exercise The taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) Any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason;
(c) Any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) The entering into, delivery of, modification of, amendment to or waiver of compliance with the Loan Credit Agreement, any Note or any other Loan Document, or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligationsnotification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(be) insolvency, The bankruptcy, reorganizationinsolvency, arrangement, adjustment, composition, assignment liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Borrower, Guarantor or any other Person at any time liable or obligated for the benefit payment of creditorsany or all of the Guaranteed Obligations, appointment whether now existing or hereafter arising;
(f) Any renewal, extension, modification, refunding and/or rearrangement of a receiver the payment of any or trustee for all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor, or any part of Borrower's adjustment, indulgence, forbearance or Guarantor's assets, liquidation, winding-up, compromise that might be granted or dissolution of given by Agent or any Lender to Borrower or Guarantor;
(cg) Any neglect, delay, omission, failure or refusal of Agent or any limitation, discharge, cessation, Lender to (i) exercise or partial satisfaction properly or diligently exercise any right or remedy with respect to any or all of the Liabilities Guaranteed Obligations or the collection thereof or any Guaranty Obligationscollateral, security or guaranty therefor, whether by operation of under the Credit Agreement, any statute, regulation, Note or rule of law, any other Loan Document or otherwise, regardless (ii) take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the intervention Guaranteed Obligations against Borrower, Guarantor or omission any other guarantor of Lenderany or all of the Guaranteed Obligations and/or any other Person, (iii) foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, or (iv) mitigate damages or take any invalidityother action to reduce, voidabilitycollect or enforce the Guaranteed Obligations;
(h) Any failure of Agent or any Lender to give notice to Borrower and/or Guarantor of, or obtain the consent of Borrower and/or Guarantor with respect to, (i) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (ii) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (iii) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially
(i) The unenforceability, illegality or irregularityuncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of the fact that the interest contracted for, charged, collected or future change to received in respect of the Guaranteed Obligations exceeds the maximum amount permitted by law, the act of creating the Guaranteed Obligations or amendment ofany part thereof is ultra vire▇, ▇▇e officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in whole or in partexcess of their authority, the Loan Agreement, this Agreement, any other Loan DocumentNote, or any other document Loan Document evidencing any Liabilitiesthe Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or expiration of the applicable statute of limitations with respect to the Guaranteed Obligations;
(dj) Any payment by Borrower to Agent or any Lender is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason Agent or any Lender is required to refund such payment or pay such amount to Borrower or any other Person;
(k) Any merger, acquisitionreorganization, consolidation or change in structure dissolution of Borrower or Guarantor; or Borrower, any sale, lease, transfer, lease or other disposition transfer of any or all of the assets of Borrower Borrower, or Guarantorany change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Borrower;
(el) Any failure of Agent or any assignment Lender to notify Guarantor of the acceptance of this Guaranty or of the funding of Advances by any Lender in reliance on this Guaranty or of the failure of Borrower to make any payment due by Borrower to Agent or any Lender;
(m) Any existing or future offset, claim or defense of Borrower against Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) Any full or partial release of the liability of Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other transferPerson for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to pay the Guaranteed Obligations in whole full without assistance or in partsupport, whether from Borrower, any other guarantor or any other Person; or
(o) Any other action taken or omitted to be taken with respect to any of Lender's interest in and rights under the Loan Agreement Credit Agreement, any Note or any other Loan Document, including the Guaranteed Obligations or the Without limiting the foregoing or Guarantor's liability under this AgreementGuaranty, to the extent that Agent and the Lenders (or any of Lender's interest them) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in the Liabilities, amounts and at the Guaranty Obligations, times required or the Collateral;
(f) any claim, defense, counterclaim, provided by or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with the Credit Agreement, any Notes or by reason of any agreement or transaction that may be illegalother Loan Document, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that is absolutely liable to make such payments and to confer such benefits on the Guaranty Obligations shall not be dischargedLenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. The Guaranty Obligations are Guarantors agree that the liability hereunder shall be the immediate, direct, primary, direct and absolute obligations primary obligation of Guarantor, Guarantors and shall not be subject to contingent upon Lender's exercise or enforcement of any condition precedentremedy that Lender may have against Borrower or any other Person, and are independent or against any collateral or any security for the Guaranty Obligations. Without limiting the generality of and not co-extensive with the Liabilities. The foregoing, the Guaranty Obligations shall remain in full force and effect without regard to, to and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor Guarantors be released, exonerated or the Collateral be exonerated, discharged, or released discharged by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assetsdeath, liquidation, winding-up, winding up or dissolution of Borrower death of Borrower, Guarantors or Guarantorany other guarantor of the Liabilities;
(b) any limitation, discharge or cessation of the liability of Borrower, Guarantors or any other guarantor for the Liabilities due to any statute, regulation or rule of law or any invalidity or unenforceability in whole or in part of the Loan Agreement or any other guaranty of the Liabilities;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any Liabilities;
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantorany other guarantor of the Liabilities; or any sale, lease, transfer, transfer or other disposition of any or all of the assets or membership interests of Borrower Borrower, Guarantors or Guarantorany other guarantor of the Liabilities;
(ed) any assignment or other transfer, in whole or in part, of Lender's interest interests in and rights under the Loan Agreement or any other Loan Documentand this Guaranty including, including this Agreementwithout limitation, or of Lender's interest in right to receive payment of the Liabilities, Liabilities and the Guaranty Obligations, or the Collateral;
(fe) any claim, defense, counterclaim, counterclaim or set-offsetoff, other than (i) that of prior performance, that Borrower, Guarantors or any other guarantor of the Liabilities may have or assert including, but not limited to, any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, incapacity or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, Obligations or the Collateralany other guaranty obligations;
(gf) any cancellation, renunciation, renunciation or surrender of any debt instrument evidencing the Liabilities Liabilities;
(g) Lender's amendment, modification, renewal or extension of any documents or agreements relating to the Loan Agreement, the Liabilities, or the Guaranty Obligations;
(h) the exercise or nonexercise of any power, right or remedy with respect to the Liabilities or the Guaranty Obligations by Lender including, but not limited to, compromise, release, settlement or waiver with or of Borrower or Guarantors;
(i) Lender's vote, claim, distribution, election, acceptance, action, action or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due Obligations; and
(j) any impairment or payable in connection with or by reason invalidity of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that collateral securing the Guaranty Obligations shall not be dischargedor any failure to perfect any of Lender's liens thereon or security interests therein.
Appears in 1 contract
Absolute Guaranty. The Guarantor's liabilities and obligations under this Guaranty Obligations are the immediate, direct, primary, shall be absolute and absolute obligations of Guarantorunconditional irrespective of, shall not be subject to any condition precedentreleased, impaired, limited, reduced, conditioned upon or otherwise affected by and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without regard tolimitation, any one or more of the following events specified in clauses (a) through (o) of this Paragraph 4 below, and neither Administrative Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not be impaired have any liability, obligation or affected byduty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor that all of such liabilities, obligations and duties (if any) of Administrative Agent or be deemed any Lender otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to be satisfied byeliminate, nor shall impair, condition or restrict the liabilities and obligations of Guarantor or for the Collateral be exoneratedGuaranteed Obligations, discharged, or released by, any of the following eventsare hereby expressly waived by Guarantor:
(a) Lender's exercise The taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) Any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason;
(c) Any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) The entering into, delivery of, modification of, amendment to or waiver of compliance with the Loan Credit Agreement, the Note or any other Loan Document, or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligationsnotification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(be) insolvency, The bankruptcy, reorganizationinsolvency, arrangement, adjustment, composition, assignment liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Borrower, Guarantor or any other Person at any time liable or obligated for the benefit payment of creditorsany or all of the Guaranteed Obligations, appointment whether now existing or hereafter arising;
(f) Any increase, reduction, renewal, extension, modification, repayment, refunding and/or rearrangement of a receiver the payment of any or trustee for all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor, or any part of Borrower's adjustment, indulgence, forbearance or Guarantor's assets, liquidation, winding-up, compromise that might be granted or dissolution of given by Administrative Agent or any Lender to Borrower or Guarantor;
(cg) Any neglect, delay, omission, failure or refusal of Administrative Agent or any limitation, discharge, cessation, Lender to (i) exercise or partial satisfaction properly or diligently exercise any right or remedy with respect to any or all of the Liabilities Guaranteed Obligations or the collection thereof or any Guaranty Obligationscollateral, security or guaranty therefor, whether by operation of under the Credit Agreement, the Note or any statute, regulation, or rule of law, other Loan Document or otherwise, regardless (ii) take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the intervention Guaranteed Obligations against Borrower, Guarantor or omission any other guarantor of Lenderany or all of the Guaranteed Obligations and/or any other Person, (iii) foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, or (iv) mitigate damages or take any invalidityother action to reduce, voidabilitycollect or enforce the Guaranteed Obligations;
(h) Any failure of Administrative Agent or any Lender to give notice to Borrower and/or Guarantor of, or obtain the consent of Borrower and/or Guarantor with respect to, (i) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (ii) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (iii) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (iv) any other action taken or refrained from being taken by Administrative Agent or any Lender against Borrower, it being agreed that (except as may be expressly provided in the other Loan Documents) neither Administrative Agent nor any Lender shall be required to give Borrower or Guarantor any notice of any kind or to obtain Borrower's or Guarantor's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) The unenforceability, illegality or irregularityuncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of the fact that the interest contracted for, charged, collected or future change to received in respect of the Guaranteed Obligations exceeds the amount permitted by law, the act of creating the Guaranteed Obligations or amendment ofany part thereof is ultra vire▇, ▇▇e officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in whole or in partexcess of their authority, the Loan Agreement, this Agreement, the Note or any other Loan DocumentDocument evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic or expiration of the applicable statute of limitations of the Guaranteed Obligations;
(j) Any payment by Borrower to Administrative Agent or any Lender is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason Administrative Agent or any Lender is required to refund such payment or pay such amount to Borrower or any other document evidencing any LiabilitiesPerson;
(dk) any Any merger, acquisitionreorganization, consolidation or change in structure dissolution of Borrower or Guarantor; or Borrower, any sale, lease, transfer, lease or other disposition transfer of any or all of the assets of Borrower Borrower, or Guarantorany change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Borrower;
(el) Any failure of Administrative Agent or any assignment Lender to notify Guarantor of the acceptance of this Guaranty or of the making of Loans by any Lender in reliance on this Guaranty or of the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender;
(m) Any existing or future offset, claim or defense of Borrower against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) Any full or partial release of the liability of Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other transferPerson for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to pay the Guaranteed Obligations in whole full without assistance or in partsupport, whether from Borrower, any other guarantor or any other Person; or
(o) Any other action taken or omitted to be taken with respect to any of Lender's interest in and rights under the Loan Agreement Credit Agreement, the Note or any other Loan Document, including the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the Guaranteed Obligations pursuant to the terms hereof. Without limiting the foregoing or Guarantor's liability under this AgreementGuaranty, to the extent that Administrative Agent and Lenders (or any of Lender's interest them) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in the Liabilities, amounts and at the Guaranty Obligations, times required or the Collateral;
(f) any claim, defense, counterclaim, provided by or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with the Credit Agreement, the Note or by reason of any agreement or transaction that may be illegalother Loan Document, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be dischargedis absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
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Absolute Guaranty. The No Guarantor’s liabilities and obligations under this Guaranty Obligations are the immediateshall be released, directimpaired, primarylimited, reduced, conditioned upon or otherwise affected by, and absolute such liabilities and obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the Liabilities. The Guaranty Obligations shall remain continue in full force and effect notwithstanding, the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released bylimitation, any one or more of the following eventsevents specified in clauses (a) through (r) of this Paragraph 4 below, and neither the Administrative Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall have no liability, obligation or duty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by each Guarantor that all of such liabilities, obligations and duties (if any) of the Administrative Agent and the Lender otherwise existing and all rights and remedies (if any) of each Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to eliminate, impair, condition or restrict the liabilities and obligations of any Guarantor for the Guaranteed Obligations, are hereby expressly waived by each Guarantor:
(a) Lender's exercise The taking or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any accepting of the Liabilities, the Collateral, or the Guaranty Obligations, including: (i) any action or inaction of Lender to perfect, protect, or enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Lender's right to enforce against Borrower any Liabilities, any Guaranty Obligations, or any security interest in or Lien upon the Collateral; or (iii) any change in the time, manner, or place of payment of, or in any other term of, guaranty for any or all of the Liabilities Guaranteed Obligations, whether heretofore, concurrently herewith or the Guaranty Obligationshereafter;
(b) Any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason;
(c) Any partial or full release of the liability or obligation of any other Guarantor under this Guaranty or any other guaranty whether or not similar to this Guaranty, or any partial or full release of the liability or obligation of any other guarantor of the Guaranteed Obligations;
(d) The entering into, delivery of, modification of, amendment to or waiver of compliance with the Loan Credit Agreement, any Note, any Letter of Credit or any other Loan Document, or any other agreement agreement, document or instrument governing evidencing, securing or evidencing any otherwise affecting all or part of the Liabilities or Guaranteed Obligations, without the Guaranty Obligations;
(b) insolvencynotification of any Guarantor, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit right of creditors, appointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or such notification being hereby specifically waived by each Guarantor;
(c) any limitation, discharge, cessation, or partial satisfaction of the Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Loan Agreement, this Agreement, any other Loan Document, or any other document evidencing any Liabilities;
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any sale, lease, transfer, or other disposition of any or all of the assets of Borrower or Guarantor;
(e) any assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Loan Agreement or any other Loan Document, including this Agreement, or of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Liabilities or the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Liabilities, or the Guaranty Obligations;
(i) any other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor that the Guaranty Obligations shall not be discharged.
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Sources: Credit Agreement (Sourcecorp Inc)