Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations. (b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtors. (c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations and the obligations of the Borrower under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments and Loans shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations. (d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Scotts Miracle-Gro Co), Guarantee and Collateral Agreement (Scotts Miracle-Gro Co)
Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtorsdebtors (after giving effect to the right of contribution established in Section 2.2).
(c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations and the obligations of the Borrower under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no each Letter of Credit shall be outstanding have terminated, expired or been Collateralized and the Commitments and Loans shall be terminatedhave been terminated (all of the foregoing conditions together, the “Subsidary Borrower Termination Event”), notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
(d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the occurrence of the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminatedTermination Event.
Appears in 1 contract
Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtorsdebtors (after giving effect to the right of contribution established in Section 2.2).
(c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations and the obligations of the Borrower under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments and Loans shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
(d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Scotts Miracle-Gro Co)
Borrower Guarantee. In order to induce the Lenders and the Alternate Currency Banks to extend credit hereunder, the Borrower fully and unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, the Obligations attributable to any Subsidiary Borrower or any Alternate Currency Borrower (aincluding, without limitation, interest accruing hereunder after the commencement of any case under the United States Bankruptcy Code or any other bankruptcy-related rules or legislation in any country in which any Subsidiary Borrower or any Alternate Currency Borrower is organized, whether or not allowed as a claim in such case) (the “Borrower Guaranteed Obligations”). The obligations of the Borrower under this Article XVI are referred to as the “Borrower Guarantee”. The Borrower herebyfurther agrees that the Borrower Guaranteed Obligations may be extended or renewed, unconditionally in whole or in part, without notice to or further assent from it, and irrevocablythat it will remain bound upon the Borrower Guarantee hereunder notwithstanding any such extension or renewal of the Borrower Guaranteed Obligations. The Borrower waives presentment to, guarantees demand of payment from and protest to any Subsidiary Borrower or any Alternate Currency Borrower of any of the Administrative Borrower Guaranteed Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Borrower hereunder shall not be affected by the failure of any Lender, any Alternate Currency Bank or the Agent to assert any claim or demand or to enforce any right or remedy against any Subsidiary Borrower or any Alternate Currency Borrower under the provisions of this Agreement, any Alternate Currency Addendum or any of the other Loan Documents or otherwise, or, except as specifically provided therein, by any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, any Alternate Currency Addendum, any of the other Loan Documents or any other agreement. The Borrower further agrees that its Borrower Guarantee hereunder constitutes a promise of payment when due and not merely of collection, and waives any right to require that any resort be had by any Lender or any Alternate Currency Bank to any balance of any deposit account or credit on the books of any Lender or any Alternate Currency Bank in favor of any Subsidiary Borrower or any Alternate Currency Borrower or any other Person. The Borrower agrees that its obligations under this Borrower Guarantee shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance, novation or subordination of any of the Borrower Guaranteed Obligations or any of the Loan Documents;
(ii) the absence of any attempt by, or on behalf of, any Lender, any Alternate Currency Bank or the Agent to collect, or to take any other action to enforce, all or any part of the Borrower Guaranteed Obligations whether from or against any Subsidiary Borrower or any Alternate Currency Borrower, any other guarantor of the Borrower Guaranteed Obligations or any other Person;
(iii) the election of any remedy by, or on behalf of, any Lender, any Alternate Currency Bank or the Agent with respect to all or any part of the Borrower Guaranteed Obligations;
(iv) the waiver, consent, extension, forbearance or granting of any indulgence by, or on behalf of, any Lender, any Alternate Currency Bank or the Agent with respect to any provision of any of the Loan Documents;
(v) the failure of the Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Borrower Guaranteed Obligations;
(vi) the election by, or on behalf of, any one or more of the Lenders, Alternate Currency Banks or the Agent in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”) or other bankruptcy-related rules or legislation in any country in which a Borrower is organized, of the application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by any Subsidiary Borrower or any Alternate Currency Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code or any other bankruptcy-related rules or regulations in any country in which a Subsidiary Borrower or an Alternate Currency Borrower is organized;
(viii) the disallowance, under Section 502 of the Bankruptcy Code or any other bankruptcy-related rules or regulations in any country in which a Borrower is organized, of all or any portion of the claims of any of the Lenders, the Alternate Currency Banks or the Agent for repayment of all or any part of the Borrower Guaranteed Obligations; or
(ix) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of any Subsidiary Borrower or any Alternate Currency Borrower or any Guarantor. The obligations of the Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of the Borrower Guaranteed Obligations, any impossibility in the performance of the Borrower Guaranteed Obligations or otherwise. The Lenders and the Alternate Currency Banks, either themselves or acting through the Agent, for are authorized, without notice or demand and without affecting the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under hereunder, from time to time, (a) to renew, extend, accelerate or otherwise change the time for payment of, or other Loan Documents shall in no event exceed the amount which can be guaranteed by terms relating to, all or any part of the Borrower under applicable federal and state laws relating Guaranteed Obligations, or to otherwise modify, amend or change the insolvency terms of debtors.
any of the Loan Documents; (b) to accept partial payments on all or any part of the Borrower Guaranteed Obligations; (c) to take and hold security or collateral for the payment of all or any part of the Borrower Guaranteed Obligations, this Borrower Guarantee, or any other guaranties of all or any part of the Borrower Guaranteed Obligations, (d) to exchange, enforce, waive and release any such security or collateral; (e) to apply such security or collateral and direct the order or manner of sale thereof as in their discretion they may determine; (f) to settle, release, exchange, enforce, waive, compromise or collect or otherwise liquidate all or any part of the Borrower Guaranteed Obligations, this Borrower Guarantee, any other guaranty of all or any part of the Borrower Guaranteed Obligations, and any security or collateral for the Borrower Guaranteed Obligations or for any such guaranty. The guarantee contained Borrower consents and agrees that none of the Lenders, the Alternate Currency Banks, the Agent or any Person acting for or on behalf of the Lenders, the Alternate Currency Banks or the Agent shall be under any obligation to m▇▇▇▇▇▇▇ any assets in this Section 2 favor of the Borrower or against or in payment of any or all of the Borrower Guaranteed Obligations. The Borrower further agrees that, to the extent that any Subsidiary Borrower, any Alternate Currency Borrower, any Subsidiary Guarantor or any other guarantor of all or any part of the Borrower Guaranteed Obligations makes a payment or payments to any Lender, any Alternate Currency Bank or the Agent, or any Lender, any Alternate Currency Bank or the Agent receives any proceeds of collateral for all or any part of the Borrower Guaranteed Obligations, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to any Subsidiary Borrower, any Alternate Currency Borrower, the Borrower, such other guarantor or any other Person, or their respective estates, trustees, receivers or any other party, under any bankruptcy law, state, provincial or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the part of the Borrower Guaranteed Obligations which has been paid, reduced or satisfied by such amount shall remain be reinstated and continued in full force and effect until all as of the time immediately preceding such initial payment, reduction or satisfaction. In furtherance of the foregoing and not in limitation of any other right which the Agent, any Subsidiary Borrower Obligations and or any Alternate Currency Borrower or any Lender may have at law or in equity against the obligations Borrower by virtue hereof, upon the failure of any Subsidiary Borrower or any Alternate Currency Borrower to pay any of the Borrower under Guaranteed Obligations when and as the guarantee contained same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Borrower promises to and will, upon receipt of written demand by the Agent, forthwith pay, or cause to be paid, in cash, the amount of such unpaid Borrower Guaranteed Obligations. The Borrower further agrees that if payment in respect of any of the Borrower Guaranteed Obligations owed to any Lender or any Alternate Currency Bank shall be due in a currency other than Dollars and/or at a place of payment other than as designated in this Section 2 Agreement or any Alternate Currency Addendum and if, by reason of any change in law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Borrower Guaranteed Obligations in such currency or such place of payment shall be impossible or, in the judgment of such Lender or Alternate Currency Bank, not consistent with the protection of its rights or interests, then, at the election of such Lender or Alternate Currency Bank, the Borrower shall make payment of such Borrower Guaranteed Obligation in Dollars (based upon the applicable exchange rate in effect on the date of payment) and/or in the applicable place designated in this Agreement or the applicable Alternate Currency Addendum, and shall indemnify such Lender or Alternate Currency Bank against any losses or expenses that it shall sustain as a result of such alternative payment. Until the Borrower Guaranteed Obligations shall have been satisfied by payment fully and indefeasibly paid (in full, no Letter of Credit shall be outstanding cash) and the Commitments discharged and Loans shall be terminated, notwithstanding that from time to time during the term of the Credit this Agreement each Subsidiary Borrower may be free from and all financing arrangements between any Subsidiary Borrower Obligations.
or any Alternate Currency Borrower, the Agent, the Alternate Currency Banks and the Lenders shall have been terminated, the Borrower (di) No shall have no right of subrogation with respect to such Borrower Guaranteed Obligations and (ii) waives any right to enforce any remedy which the Lenders, the Alternate Currency Banks or the Agent (or any of them) now have or may hereafter have against any Subsidiary Borrower or any Alternate Currency Borrower, any endorser or any guarantor of all or any part of the Borrower Guaranteed Obligations or any other Person, and the Borrower waives any benefit of, and any right to participate in, any security or collateral given to the Lenders, the Alternate Currency Banks and the Agent (or any of them) to secure the payment made by or performance of all or any part of the Borrower Guaranteed Obligations or any other liability of any Subsidiary Borrower or any Alternate Currency Borrower to the Lenders, the Alternate Currency Banks or the Agent (or any of them). This Borrower Guarantee shall continue in full force and effect and may not be terminated or otherwise revoked until the Borrower Guaranteed Obligations shall have been fully and indefeasibly paid (in cash) and discharged and this Agreement and all financing arrangements between any Subsidiary Borrower, any Alternate Currency Borrower, the Agent, the Alternate Currency Banks and the Lenders shall have been terminated. If, notwithstanding the foregoing, the Borrower shall have any right under applicable law to terminate or revoke this Borrower Guarantee, the Borrower agrees that such termination or revocation shall not be effective until a written notice of the other Guarantorssuch revocation or termination, any other guarantor or any other Person or specifically referring hereto, signed by Borrower, is actually received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, Agent. Such notice shall not affect the right and power of any of the other GuarantorsLenders, the Alternate Currency Banks or the Agent to enforce rights arising prior to receipt thereof by the Agent. If any other guarantor Lender or any Alternate Currency Bank grants loans or takes other Person by virtue action after the Borrower terminates or revokes this Borrower Guarantee but before the Agent receives such written notice, the rights of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations such Lender with respect thereto shall be deemed to modify, reduce, release the same as if such termination or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminatedrevocation had not occurred.
Appears in 1 contract
Sources: Credit Agreement (Schawk Inc)
Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower ObligationsObligations (other than with respect to any Guarantor any Excluded Swap Obligations of such Guarantor).
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtors.
(c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations and the obligations of the Borrower under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Commitments and Loans shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
(d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminated.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Scotts Miracle-Gro Co)
Borrower Guarantee. (a) The 113 In order to induce the Lenders and the Alternate Currency Banks to extend credit hereunder, the Borrower hereby, fully and unconditionally and irrevocablyirrevocably guarantees, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties as a primary obligor and their respective successors, indorsees, transferees and assignsnot merely as a surety, the prompt and complete payment and performance by each Subsidiary Obligations attributable to any Alternate Currency Borrower when due (whether at including, without limitation, interest accruing hereunder after the stated maturity, by acceleration commencement of any case under the United States Bankruptcy Code or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein any other bankruptcy-related rules or legislation in any other Loan Document to country in which any Alternate Currency Borrower is organized, whether or not allowed as a claim in such case) (the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtors.
(c) "BORROWER GUARANTEED OBLIGATIONS"). The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations and the obligations of the Borrower under this Article XVI are referred to as the guarantee contained "BORROWER GUARANTEE". The Borrower further agrees that the Borrower Guaranteed Obligations may be extended or renewed, in this Section 2 shall have been satisfied by payment whole or in fullpart, no Letter of Credit shall be outstanding without notice to or further assent from it, and that it will remain bound upon the Commitments and Loans shall be terminated, Borrower Guarantee hereunder notwithstanding that from time to time during the term any such extension or renewal of the Credit Agreement each Subsidiary Borrower may Guaranteed Obligations. The Borrower waives presentment to, demand of payment from and protest to any Alternate Currency Borrower of any of the Borrower Guaranteed Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Borrower hereunder shall not be free from affected by the failure of any Subsidiary Lender, any Alternate Currency Bank or any Agent to assert any claim or demand or to enforce any right or remedy against any Alternate Currency Borrower Obligations.
(d) No payment made under the provisions of this Agreement, any Alternate Currency Addendum or any of the other Loan Documents or otherwise, or, except as specifically provided therein, by any Subsidiary Borrowerrescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, any Alternate Currency Addendum, any of the other GuarantorsLoan Documents or any other agreement. The Borrower further agrees that its Borrower Guarantee hereunder constitutes a promise of payment when due and not merely of collection, and waives any right to require that any resort be had by any Lender or any Alternate Currency Bank to any balance of any deposit account or credit on the books of any Lender or any Alternate Currency Bank in favor of any Alternate Currency Borrower or any other person. The Borrower agrees that its obligations under this Borrower Guarantee shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance, novation or subordination of any of the Borrower Guaranteed Obligations or any of the Loan Documents;
(ii) the absence of any attempt by, or on behalf of, any Lender, any Alternate Currency Bank or any Agent to collect, or to take any other action to enforce, all or any part of the Borrower Guaranteed Obligations whether from or against any Alternate Currency Borrower, any other guarantor of the Borrower Guaranteed Obligations or any other Person Person;
(iii) the election of any remedy by, or received or collected by the Administrative Agent on behalf of, any Lender, any Alternate Currency Bank or any Lender from Agent with respect to all or any Subsidiary Borrowerpart of the Borrower Guaranteed Obligations;
(iv) the waiver, consent, extension, forbearance or granting of any indulgence by, or on behalf of, any Lender, any Alternate Currency Bank or any Agent with respect to any provision of any of the other GuarantorsLoan Documents;
(v) the failure of any Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Borrower Guaranteed Obligations;
(vi) the election by, or on behalf of, any one or more of the Lenders, Alternate Currency Banks or any Agent in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "BANKRUPTCY CODE") or other guarantor bankruptcy-related rules or legislation in any country in which a Borrower is organized, of the application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by any Alternate Currency Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code or any other Person by virtue bankruptcy-related rules or regulations in any country in which an Alternate Currency Borrower is organized;
(viii) the disallowance, under Section 502 of the Bankruptcy Code or any other bankruptcy-related rules or regulations in any country in which a Borrower is organized, of all or any portion of the claims of any action or proceeding of the Lenders, the Alternate Currency Banks or any set-off Agent for repayment of all or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability part of the Borrower hereunder Guaranteed Obligations; or
(ix) any other circumstance which shall, notwithstanding might otherwise constitute a legal or equitable discharge or defense of any such payment (other than any payment made by the Alternate Currency Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminatedGuarantor.
Appears in 1 contract
Sources: Credit Agreement (Schawk Inc)
Borrower Guarantee. In order to induce the Lenders and the Alternate Currency Banks to extend credit hereunder, the Borrower fully and unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, the Obligations attributable to any Subsidiary Borrower or any Alternate Currency Borrower (aincluding, without limitation, interest accruing hereunder after the commencement of any case under the United States Bankruptcy Code or any other bankruptcy-related rules or legislation in any country in which any Subsidiary Borrower or any Alternate Currency Borrower is organized, whether or not allowed as a claim in such case) (the “Borrower Guaranteed Obligations”). The obligations of the Borrower under this Article XVI are referred to as the “Borrower Guarantee”. The Borrower herebyfurther agrees that the Borrower Guaranteed Obligations may be extended or renewed, unconditionally in whole or in part, without notice to or further assent from it, and irrevocablythat it will remain bound upon the Borrower Guarantee hereunder notwithstanding any such extension or renewal of the Borrower Guaranteed Obligations. The Borrower waives presentment to, guarantees demand of payment from and protest to any Subsidiary Borrower or any Alternate Currency Borrower of any of the Administrative AgentBorrower Guaranteed Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Borrower hereunder shall not be affected by the failure of any Lender, any Alternate Currency Bank or any Agent to assert any claim or demand or to enforce any right or remedy against any Subsidiary Borrower or any Alternate Currency Borrower under the provisions of this Agreement, any Alternate Currency Addendum or any of the other Loan Documents or otherwise, or, except as specifically provided therein, by any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, any Alternate Currency Addendum, any of the other Loan Documents or any other agreement. The Borrower further agrees that its Borrower Guarantee hereunder constitutes a promise of payment when due and not merely of collection, and waives any right to require that any resort be had by any Lender or any Alternate Currency Bank to any balance of any deposit account or credit on the books of any Lender or any Alternate Currency Bank in favor of any Subsidiary Borrower or any Alternate Currency Borrower or any other Person. The Borrower agrees that its obligations under this Borrower Guarantee shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance, novation or subordination of any of the Borrower Guaranteed Obligations or any of the Loan Documents;
(ii) the absence of any attempt by, or on behalf of, any Lender, any Alternate Currency Bank or any Agent to collect, or to take any other action to enforce, all or any part of the Borrower Guaranteed Obligations whether from or against any Subsidiary Borrower or any Alternate Currency Borrower, any other guarantor of the Borrower Guaranteed Obligations or any other Person;
(iii) the election of any remedy by, or on behalf of, any Lender, any Alternate Currency Bank or any Agent with respect to all or any part of the Borrower Guaranteed Obligations;
(iv) the waiver, consent, extension, forbearance or granting of any indulgence by, or on behalf of, any Lender, any Alternate Currency Bank or any Agent with respect to any provision of any of the Loan Documents;
(v) the failure of any Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the ratable benefit Borrower Guaranteed Obligations;
(vi) the election by, or on behalf of, any one or more of the Secured Parties and their respective successorsLenders, indorseesAlternate Currency Banks or any Agent in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”) or other bankruptcy-related rules or legislation in any country in which a Borrower is organized, transferees and assignsof the application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by any Subsidiary Borrower or any Alternate Currency Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code or any other bankruptcy-related rules or regulations in any country in which a Subsidiary Borrower or an Alternate Currency Borrower is organized;
(viii) the disallowance, under Section 502 of the Bankruptcy Code or any other bankruptcy-related rules or regulations in any country in which a Borrower is organized, of all or any portion of the claims of any of the Lenders, the prompt and complete payment and performance by each Alternate Currency Banks or any Agent for repayment of all or any part of the Borrower Guaranteed Obligations; or
(ix) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of any Subsidiary Borrower when due (whether at or any Alternate Currency Borrower or any Guarantor. The obligations of the stated maturityBorrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by acceleration reason of the invalidity, illegality or unenforceability of the Borrower Guaranteed Obligations, any impossibility in the performance of the Borrower Guaranteed Obligations or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein . The Lenders and the Alternate Currency Banks, either themselves or in any other Loan Document to acting through the contrary notwithstandingAgents, are authorized, without notice or demand and without affecting the maximum liability of the Borrower hereunder and under hereunder, from time to time, (a) to renew, extend, accelerate or otherwise change the time for payment of, or other Loan Documents shall in no event exceed the amount which can be guaranteed by terms relating to, all or any part of the Borrower under applicable federal and state laws relating Guaranteed Obligations, or to otherwise modify, amend or change the insolvency terms of debtors.
any of the Loan Documents; (b) to accept partial payments on all or any part of the Borrower Guaranteed Obligations; (c) to take and hold security or collateral for the payment of all or any part of the Borrower Guaranteed Obligations, this Borrower Guarantee, or any other guaranties of all or any part of the Borrower Guaranteed Obligations, (d) to exchange, enforce, waive and release any such security or collateral; (e) to apply such security or collateral and direct the order or manner of sale thereof as in their discretion they may determine; (f) to settle, release, exchange, enforce, waive, compromise or collect or otherwise liquidate all or any part of the Borrower Guaranteed Obligations, this Borrower Guarantee, any other guaranty of all or any part of the Borrower Guaranteed Obligations, and any security or collateral for the Borrower Guaranteed Obligations or for any such guaranty. The guarantee contained Borrower consents and agrees that none of the Lenders, the Alternate Currency Banks, the Agents or any Person acting for or on behalf of the Lenders, the Alternate Currency Banks or the Agents shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in this Section 2 favor of the Borrower or against or in payment of any or all of the Borrower Guaranteed Obligations. The Borrower further agrees that, to the extent that any Subsidiary Borrower, any Alternate Currency Borrower, any Subsidiary Guarantor or any other guarantor of all or any part of the Borrower Guaranteed Obligations makes a payment or payments to any Lender, any Alternate Currency Bank or any Agent, or any Lender, any Alternate Currency Bank or any Agent receives any proceeds of collateral for all or any part of the Borrower Guaranteed Obligations, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to any Subsidiary Borrower, any Alternate Currency Borrower, the Borrower, such other guarantor or any other Person, or their respective estates, trustees, receivers or any other party, under any bankruptcy law, state, provincial or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the part of the Borrower Guaranteed Obligations which has been paid, reduced or satisfied by such amount shall remain be reinstated and continued in full force and effect until all as of the time immediately preceding such initial payment, reduction or satisfaction. In furtherance of the foregoing and not in limitation of any other right which any Agent, any Subsidiary Borrower Obligations and or any Alternate Currency Borrower or any Lender may have at law or in equity against the obligations Borrower by virtue hereof, upon the failure of any Subsidiary Borrower or any Alternate Currency Borrower to pay any of the Borrower under Guaranteed Obligations when and as the guarantee contained same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Borrower promises to and will, upon receipt of written demand by any Agent, forthwith pay, or cause to be paid, in cash, the amount of such unpaid Borrower Guaranteed Obligations. The Borrower further agrees that if payment in respect of any of the Borrower Guaranteed Obligations owed to any Lender or any Alternate Currency Bank shall be due in a currency other than Dollars and/or at a place of payment other than as designated in this Section 2 Agreement or any Alternate Currency Addendum and if, by reason of any change in law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Borrower Guaranteed Obligations in such currency or such place of payment shall be impossible or, in the judgment of such Lender or Alternate Currency Bank, not consistent with the protection of its rights or interests, then, at the election of such Lender or Alternate Currency Bank, the Borrower shall make payment of such Borrower Guaranteed Obligation in Dollars (based upon the applicable exchange rate in effect on the date of payment) and/or in the applicable place designated in this Agreement or the applicable Alternate Currency Addendum, and shall indemnify such Lender or Alternate Currency Bank against any losses or expenses that it shall sustain as a result of such alternative payment. Until the Borrower Guaranteed Obligations shall have been satisfied by payment fully and indefeasibly paid (in full, no Letter of Credit shall be outstanding cash) and the Commitments discharged and Loans shall be terminated, notwithstanding that from time to time during the term of the Credit this Agreement each Subsidiary Borrower may be free from and all financing arrangements between any Subsidiary Borrower Obligations.
or any Alternate Currency Borrower, the Agent, the Alternate Currency Banks and the Lenders shall have been terminated, the Borrower (di) No shall have no right of subrogation with respect to such Borrower Guaranteed Obligations and (ii) waives any right to enforce any remedy which the Lenders, the Alternate Currency Banks or any Agent (or any of them) now have or may hereafter have against any Subsidiary Borrower or any Alternate Currency Borrower, any endorser or any guarantor of all or any part of the Borrower Guaranteed Obligations or any other Person, and the Borrower waives any benefit of, and any right to participate in, any security or collateral given to the Lenders, the Alternate Currency Banks and any Agent (or any of them) to secure the payment made by or performance of all or any part of the Borrower Guaranteed Obligations or any other liability of any Subsidiary Borrower or any Alternate Currency Borrower to the Lenders, the Alternate Currency Banks or any Agent (or any of them). This Borrower Guarantee shall continue in full force and effect and may not be terminated or otherwise revoked until the Borrower Guaranteed Obligations shall have been fully and indefeasibly paid (in cash) and discharged and this Agreement and all financing arrangements between any Subsidiary Borrower, any Alternate Currency Borrower, the Agents, the Alternate Currency Banks and the Lenders shall have been terminated. If, notwithstanding the foregoing, the Borrower shall have any right under applicable law to terminate or revoke this Borrower Guarantee, the Borrower agrees that such termination or revocation shall not be effective until a written notice of the other Guarantorssuch revocation or termination, any other guarantor or any other Person or specifically referring hereto, signed by Borrower, is actually received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, Agent. Such notice shall not affect the right and power of any of the other GuarantorsLenders, the Alternate Currency Banks or the Agents to enforce rights arising prior to receipt thereof by the Agent. If any other guarantor Lender or any Alternate Currency Bank grants loans or takes other Person by virtue action after the Borrower terminates or revokes this Borrower Guarantee but before the Agent receives such written notice, the rights of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations such Lender with respect thereto shall be deemed to modify, reduce, release the same as if such termination or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminatedrevocation had not occurred.
Appears in 1 contract
Sources: Credit Agreement (Schawk Inc)
Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents in respect of its guarantee obligations shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtorsdebtors (after giving effect to the right of contribution established in Section 2.2).
(c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations (other than any unasserted contingent indemnification obligations and the obligations Obligations in respect of the Borrower under the guarantee contained in this Section 2 Specified Swap Agreements and Specified Cash Management Agreements) shall have been satisfied by payment in full, no each Letter of Credit shall be outstanding have terminated, expired or been Collateralized and the Commitments and Loans shall be terminatedhave been terminated (all of the foregoing conditions together, the “Subsidiary Borrower Termination Event”), notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
(d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the occurrence of the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminatedTermination Event.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Avis Budget Group, Inc.)
Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtorsdebtors (after giving effect to the right of contribution established in Section 2.2).
(c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations and the obligations of the Borrower under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding and the Revolving Credit Commitments and Loans shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
(d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Revolving Credit Commitments are terminated.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Scotts Miracle-Gro Co)
Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents in respect of its guarantee obligations shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtorsdebtors (after giving effect to the right of contribution established in Section 2.2).
(c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations (other than any unasserted contingent indemnification obligations and the obligations Obligations in respect of the Borrower under the guarantee contained in this Section 2 Specified Swap Agreements and Specified Cash Management Agreements) shall have been satisfied by payment in full, no each Letter of Credit shall be outstanding have terminated, expired or been Collateralized and the Commitments and Loans shall be terminatedhave been terminated (all of the foregoing conditions together, the “Subsidiary Borrower Termination Event”), notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
(d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the occurrence of the Subsidiary Borrower Obligations are paid in fullTermination Event.
(e) The Borrower hereby, no Letter unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of Credit shall be outstanding the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by Subsidiaries of the Borrower of such Subsidiaries’ obligations under Specified Cash Management Agreements and the Commitments are terminatedobligations and liabilities of Subsidiaries of the Borrower under Specified Swap Agreements. For the avoidance of doubt, the guarantee provided in this clause (e) is secured by the Collateral pursuant to this Agreement.
Appears in 1 contract
Borrower Guarantee. (a) The Borrower hereby, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of its Subsidiary Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of the Borrower hereunder and under the other Loan Documents in respect of its guarantee obligations shall in no event exceed the amount which can be guaranteed by the Borrower under applicable federal and state laws relating to the insolvency of debtorsdebtors (after giving effect to the right of contribution established in Section 2.2).
(c) The guarantee contained in this Section 2 shall remain in full force and effect until all the Subsidiary Borrower Obligations and the obligations of the Borrower under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no each Letter of Credit shall be outstanding have terminated, expired or been Collateralized and the Commitments and Loans shall be terminatedhave been terminated (all of the foregoing conditions together, the “Subsidiary Borrower Termination Event”), notwithstanding that from time to time during the term of the Credit Agreement each Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
(d) No payment made by any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Lender from any Subsidiary Borrower, any of the other Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Subsidiary Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrower hereunder which shall, notwithstanding any such payment (other than any payment made by the Borrower in respect of the Subsidiary Borrower Obligations or any payment received or collected from the Borrower in respect of the Subsidiary Borrower Obligations), remain liable for the Subsidiary Borrower Obligations up to the maximum liability of the Borrower hereunder until the occurrence of the Subsidiary Borrower Obligations are paid in full, no Letter of Credit shall be outstanding and the Commitments are terminatedTermination Event.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Avis Budget Group, Inc.)