Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law): (a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any Obligation, security, person or otherwise; (b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreement; (c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation; (d) any change in the existence, structure, constitution, name, objects, powers, business or control of the Seller or PHH VMS or any other person, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or PHH VMS or any other person, or any of their assets; (e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMS, the Trust, or any other person, whether in connection herewith or any unrelated transactions; (f) any invalidity, illegality or unenforceability relating to or against the Seller or PHH VMS or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest; (g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations; (h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations; (i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations; (j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever; (k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation; (l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise; (m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral; (n) any defence arising by reason of the failure by the Trust to marshal any assets; (o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner; (p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so; (q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; or (r) any other act or omission to act or delay of any kind by the Seller or PHH VMS, the Trust or any other person, or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 8.4, constitute a legal or equitable discharge, limitation or reduction of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantor.
Appears in 1 contract
Sources: Trust Purchase Agreement (PHH Corp)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under the Indenture or any Note, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with Base Indenture or the Transaction Documents Second Supplemental Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in the Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of the Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under this Indenture or any Note, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, examinership, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in this Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided, that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Issuer under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article Section 8 are continuing, shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):
by: (a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of any other Obligor under any Loan Document, security, person by operation of law or otherwise;
; (b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreement;
Loan Document; (c) any modification, amendment, waiver, release, non-perfection or invalidity of any directdirect or indirect security, indirect or collateral security of any guarantee or other liability of any third party, for any Obligation;
obligation of any other Obligor under any Loan Document; (d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personObligor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller any other Obligor or PHH VMS its assets or any resulting release or discharge of any obligation of any other person, or Obligor contained in any of their assets;
Loan Document; (e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMS, the Trust, any other Obligor or any other personPerson, whether or not arising in connection herewith with any Loan Document, provided that nothing herein shall prevent the assertion of any such claim by separate suit or any unrelated transactions;
compulsory counterclaim; (f) any invalidity, illegality invalidity or unenforceability relating to or against the Seller or PHH VMS any other Obligor for any reason of any Loan Document, or any provision of applicable law or regulation purporting to prohibit the payment by any other Obligor of the principal of or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction interest on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of amount payable by it under any of the following: acceptance of this Agreement, partial payment Loan Document; or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; or
(rg) any other act or omission to act or delay of any kind by the Seller or PHH VMSany other Obligor, the Trust any Lender or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Section 8.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under the Senior Indenture or any Security, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents Senior Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementSecurity;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in the Senior Indenture or any of their assetsSecurity;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Senior Trustee or any other personPerson, whether in connection herewith with the Senior Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of the Senior Indenture or PHH VMS any Security, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Security or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Issuer under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingSenior Indenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Senior Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Senior Indenture
Guarantee Unconditional. The obligations of the Performance Parent Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization reorganizatio n or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(ed) the existence of any claim, set-set off or other rights which the Performance Parent Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality irregularity, or unenforceability relating to or against the Seller or PHH VMS Company for any reason of this Indenture or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingNote; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance Parent Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (China XD Plastics Co LTD)
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 are continuing, hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of Obligor under the Agreement, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreement;
(c) any release, impairment, non-perfection or invalidity of any direct, direct or indirect or collateral security for any Obligationobligation of Obligor under the Agreement;
(d) any change in the existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personObligor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Obligor or PHH VMS its assets or any other person, resulting release or discharge of any obligation of their assetsObligor contained in the Agreement;
(e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSObligor, the Trust, any Beneficiary or any other personentity, whether in connection herewith or with any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(f) any invalidity, illegality invalidity or unenforceability relating to or against Obligor for any reason of the Seller or PHH VMS Agreement or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS Obligor of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; or
(rg) any other act or omission to act or delay of any kind by the Seller or PHH VMSObligor, the Trust any Beneficiary or any other person, person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction defense (other than defense of the Performance payment) to Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Guarantee Agreement (Riverstone VI Centennial QB Holdings, L.P.)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoingforegoing and except as expressly set forth herein, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under this Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in this Indenture or any of their assetsNote;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the TrustTrustee, the Collateral Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Issuer under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee, the Collateral Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4Section, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (Seadrill LTD)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or Special Interest, if any, on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Company under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.413.02, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than hereunder. For the payment and extinguishment in full avoidance of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rightsdoubt, the Performance Guarantor’s right Guarantees with respect to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantora Note are not exchangeable and shall automatically terminate when such Note is exchanged in accordance with this Indenture.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Company under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable dischargedischarge of or defense to such Guarantor's obligations hereunder. Each Subsidiary Guarantor, limitation or reduction of by its execution hereof, acknowledges and agrees that it receives substantial benefits from the Performance Guarantor’s obligations hereunder (other than the payment Company and extinguishment in full of all of the Obligations). The foregoing provisions apply (that such Subsidiary Guarantor is providing its Note Guarantee for good and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rightsvaluable consideration, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursementincluding, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorwithout limitation, such substantial benefits and services.
Appears in 1 contract
Sources: Indenture (Playboy Enterprises Inc)
Guarantee Unconditional. The Other than as provided for in Article 8 and this Article 12, the obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminishedexcept pursuant to Article 8, limited, impaired or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under this Indenture or any Note, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in this Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Issuer under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (Roundy's, Inc.)
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under the Indenture or the Notes, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with Indenture or the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNotes;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of their assetsthe Issuer contained in the Indenture or the Notes;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or an unrelated transaction, provided that nothing herein prevents the assertion of any unrelated transactionssuch claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality irregularity or unenforceability relating to or against the Seller Issuer for any reason of the Indenture or PHH VMS the Notes, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller Issuer of the Principal of or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction interest on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Notes or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Issuer under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under the Indenture or any Note, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with Base Indenture or the Transaction Documents Third Supplemental Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in the Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of the Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under this Indenture or any Security, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementSecurity;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in this Indenture or any of their assetsSecurity;
(ed) the existence of any claim, set-set off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of this Indenture or PHH VMS any Security, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Security or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Issuer under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under the Indenture or any Debenture, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementDebenture;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in the Indenture or any of their assetsDebenture;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or an unrelated transaction, provided that nothing herein prevents the assertion of any unrelated transactionssuch claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality irregularity or unenforceability relating to or against the Seller Company for any reason of the Indenture or PHH VMS any Debenture, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance Principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Debenture or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: First Supplemental Indenture (Comcast Holdings Corp)
Guarantee Unconditional. The obligations of each Guarantor hereunder are unconditional and absolute, irrespective of the Performance Guarantor value, genuineness, legality, validity, regularity and enforceability of the obligations of the Issuer, the Parent and the Guarantors under this Article 8 are continuingIndenture or any other agreement or instrument referred to herein, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):, will not be released, discharged or otherwise affected by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under this Indenture or any Note, security, person by operation of law or otherwise;
(b2) any rescission, waiver, modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwiseany Note, including, without limitation, or any increase agreement or decrease in any amount payable under this Agreementinstrument executed pursuant thereto;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in this Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller Issuer of the principal of or PHH VMS of interest on any Obligation including, Note or any other amount payable by the payment of any principal or interestIssuer under this Indenture;
(g6) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) perfect any defence based upon lien or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other personsecurity interest granted to, or any discharge in favor of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingHolders; or
(r7) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (GOL Linhas Aereas S.A.)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under the Indenture or any Note, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in the Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of the Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Issuer under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4Section, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The Subject to the provisions of this Article Sixteen, the obligations of the Performance Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under this Indenture or any Debt Security or coupon, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase Debt Security or decrease in any amount payable under this Agreementcoupon;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in this Indenture or any of their assetsDebt Security or coupon;
(ed) the existence of any claim, set-off or other rights which that the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Issuer for any reason of this Indenture or PHH VMS any Debt Security or coupon, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that Issuer of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacityof, lack of authority premium, if any, interest on or other defence of the Seller amounts on any Debt Security or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingcoupon; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance Guarantor’s obligations hereunder hereunder; provided, however, that:
(a) under no circumstances will the Guarantor be liable at any time or place to any Holder under this Article,
(i) for any amount of any payment that the Issuer is excused from making under the terms of any Debt Security or coupon or this Indenture, for so long as the Issuer shall be excused under such terms; or
(ii) for any amount in excess of the amount actually due and owing by the Issuer to such Holder at such time and place, after giving effect to any set-off to which the Issuer would be entitled; and
(b) in addition but not in limitation of (a) above, any defense or counterclaim of the Issuer (other than any resulting solely from, or available to the payment and extinguishment in full of all Guarantor solely on account of, the insolvency of the Obligations). The foregoing provisions apply (and Issuer or the foregoing waivers by status of the Performance Guarantor will be effectiveIssuer as the debtor or subject of a bankruptcy or insolvency proceeding) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may shall also be available to the Performance Guarantor to the same extent that such defense or counterclaim is available to the Issuer and may be asserted as a defense or counterclaim by the Guarantor, in each case whether or not asserted by the Issuer.
Appears in 1 contract
Sources: Indenture (Wells Fargo Finance LLC)
Guarantee Unconditional. The obligations of the Performance Guarantor Parent under this Article 8 XI are continuing, unconditional absolute and absolute and, without unconditional. Without limiting the generality of the foregoing, the obligations of the Parent under this Article XI shall not be impaired, released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(ai) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Borrower or any other Credit Party under this Agreement or any other Credit Document, security, person by operation of law or otherwise;
(bii) any modification modification, amendment or amendment waiver of or supplement to the Obligations made in accordance with the Transaction Documents this Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementCredit Document;
(ciii) any release, non-perfection impairment or invalidity of any direct, indirect guarantee or collateral security other liability of any other Credit Party or third party for any Obligationobligation of the Borrower under this Agreement or any other Credit Document;
(div) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS Borrower or any other person, Credit Party or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or PHH VMS Borrower or any other person, or any of their assetsCredit Party;
(ev) the existence of any claim, set-off or other rights which the Performance Guarantor Parent may have at any time against the Seller or PHH VMS, the Trust, Borrower or any other personCredit Party, the Administrative Agent, any Lender or any other Person, whether or not arising in connection herewith with the Revolving Loans and this Agreement or any unrelated transactionstransaction;
(fvi) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Borrower or PHH VMS any other Credit Party for any reason of this Agreement or any other Credit Document, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS any other Credit Party of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising amount payable by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest it under this Agreement or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingCredit Document; or
(rvii) any other act or omission to act or delay of any kind by the Seller or PHH VMSany other Credit Party, the Trust any Lender or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 8.411.2, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s Parent's obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Article XI.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) 2.2.1 any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(b) 2.2.2 any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) 2.2.3 any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(e) 2.2.4 the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions; PROVIDED that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f) 2.2.5 any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r) 2.2.6 any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (JBS USA Holdings, Inc.)
Guarantee Unconditional. The obligations of the Performance Guarantor Parent under this Article 8 Section 11 are continuing, unconditional absolute and absolute and, without unconditional. Without limiting the generality of the foregoing, the obligations of the Parent under this Section 11 shall not be impaired, released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(ai) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Borrower or any other Credit Party under this Agreement or any other Loan Document, security, person by operation of law or otherwise;
(bii) any modification modification, amendment or amendment waiver of or supplement to the Obligations made in accordance with the Transaction Documents this Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementLoan Document;
(ciii) any release, non-perfection impairment or invalidity of any direct, indirect guarantee or collateral security other liability of any other Credit Party or third party for any Obligationobligation of the Borrower under this Agreement or any other Loan Document;
(div) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS Borrower or any other person, Credit Party or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or PHH VMS Borrower or any other person, or any of their assetsCredit Party;
(ev) the existence of any claim, set-off or other rights which the Performance Guarantor Parent may have at any time against the Seller or PHH VMS, the Trust, Borrower or any other personCredit Party, the Bank or any other Person, whether or not arising in connection herewith with the Advances and this Agreement or any unrelated transactionstransaction;
(fvi) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Borrower or PHH VMS any other Credit Party for any reason of this Agreement or any other Loan Document, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS any other Credit Party of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising amount payable by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest it under this Agreement or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingLoan Document; or
(rvii) any other act or omission to act or delay of any kind by the Seller or PHH VMSany other Credit Party, the Trust Bank or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 8.411.2, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s Parent's obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Section 11.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):, will not be released, discharged or otherwise affected by
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(b2) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d3) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(e4) the existence of any claim, set-off setoff or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f5) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Company under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r6) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (Ruby Tuesday Inc)
Guarantee Unconditional. The Each Guarantor agrees that this Guarantee is a guaranty of payment or performance and not of collection, and that its obligations of the Performance Guarantor under this Article 8 are continuingGuarantee Agreement shall be primary, unconditional absolute and absolute andunconditional, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Borrower under the Loan Agreement or any other Loan Document or any obligation of any Guarantor hereunder or under any Security Document, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents Loan Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreementother Loan Document;
(c) any release, non-perfection or invalidity of any direct, direct or indirect or collateral security for any Obligationobligation of the Borrower under the Loan Agreement or any other Loan Document or any obligation of the Guarantor hereunder or under any Security Document;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personBorrower, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Borrower or PHH VMS its assets or any resulting release or discharge of any obligation of the Borrower contained in the Loan Agreement or any other person, or any of their assetsLoan Document;
(e) the existence of any claim, set-off or other rights which the Performance that any Guarantor may have at any time against the Seller or PHH VMSBorrower, the Trust, Secured Party or any other personPerson, whether in connection herewith or any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(f) any invalidity, illegality invalidity or unenforceability of the Loan Agreement or any other Loan Document against the Borrower or relating to or against the Seller or PHH VMS Borrower for any reason or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller Borrower of the principal of or PHH VMS of interest on any Obligation including, Loan (except as otherwise expressly provided in the payment of Loan Agreement) or any principal other amount payable by the Borrower under the Loan Agreement or interestany other Loan Document;
(g) the taking or accepting by Secured Party of any limitationother security, postponementcollateral or guaranty, prohibition, subordination or other restriction on the right assurance of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of for all or any part of the Obligations and the existence, creation or incurring of new or additional Guaranteed Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; or
(rh) any other act or omission to act or delay of any kind by the Seller or PHH VMSBorrower, any Guarantor, the Trust Secured Party or any other personPerson, or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance each Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the Performance Indenture and the Notes, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Notes with respect thereto. The Obligations of the Guarantor under this Article 8 Guarantee are continuing, (subject to Section 3 hereof) unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):, will not be released, discharged or otherwise affected by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under the Indenture or the Notes, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with Indenture or the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNotes;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of their assetsthe Company contained in the Indenture or the Notes;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of the Indenture or PHH VMS the Notes, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller Company of the principal of or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction interest on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Notes or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance Guarantor’s obligations under the Indenture. The obligation of the Guarantor to make any payment hereunder (other than may be satisfied by causing the Company, or Holdings or any direct or indirect Domestic Subsidiary of the Company that guarantees the payment and extinguishment in full of all of the Obligations)Notes pursuant to the Indenture, to make such payment. The foregoing provisions apply (Notwithstanding anything contained herein to the contrary, nothing shall be construed to impose upon the Guarantor any obligations greater than, in addition to, or other than, the obligations of the Company under the Indenture and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance GuarantorNotes.
Appears in 1 contract
Sources: Guarantee Agreement (Spectrum Brands Holdings, Inc.)
Guarantee Unconditional. The guarantee made by the Guarantor pursuant to this Article III is a guarantee of payment and performance and not of collection. The obligations of the Performance Guarantor under this Article 8 are hereunder shall be continuing, absolute and unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):
by: (a) any extensioninvalidity, other indulgenceillegality or unenforceability against the Investor of this Agreement due to the lack of power or authority of the Investor to enter into or perform this Agreement or as a result of the bankruptcy, renewalinsolvency, settlementdissolution, discharge, compromise, waiver, subordination liquidation or release in respect of any Obligation, security, person reorganization or otherwise;
similar event affecting the Investor; (b) any modification modification, amendment, restatement, waiver by the Investor or amendment of rescission of, or supplement any consent to the Obligations made in accordance with departure by the Transaction Documents or otherwise, including, without limitationInvestor from, any increase or decrease in any amount payable under of the terms of this Agreement;
; (c) any release, exercise or non-perfection or invalidity exercise by the Company of any direct, indirect right or collateral security for privilege under this Agreement and any Obligation;
notice of such exercise or non-exercise; (d) any extension, renewal or waiver by the Investor of any of its obligations or liabilities under this Agreement, by operation of Law or otherwise, or any assignment of any such obligations or liabilities by the Company; (e) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other person, or Investor; (f) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Investor or PHH VMS its assets or any resulting release or discharge of the Investor’s obligations or liabilities under this Agreement; (g) any requirement that the Company exhaust any right or remedy or take any action against the Investor or any other person, or any Person before seeking to enforce the obligations of their assets;
the Guarantor under this Article III; (eh) the existence of any claimdefense, set-off or other rights which that the Performance Guarantor may have at any time against the Seller or PHH VMS, the Trust, Company or any other personPerson, whether in connection herewith or any unrelated transactions;
(f) any invalidity, illegality ; or unenforceability relating to or against the Seller or PHH VMS or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust other suretyship defenses available to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; or
(r) any other act or omission to act or delay of any kind by the Seller or PHH VMS, the Trust or any other person, or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 8.4, constitute a legal or equitable discharge, limitation or reduction of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantor.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor Company as a guarantor under this Article 8 are continuing, Section 10 shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligation, security, person obligation of the Borrowing Subsidiary under this Agreement or any other Loan Document or by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreementother Loan Document;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control of the Seller or PHH VMS or any other personownership of, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting affecting, the Seller Borrowing Subsidiary or PHH VMS or any other personits assets, or any resulting release or discharge of their assetsany obligation of the Borrowing Subsidiary contained in any Loan Document;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor either Borrower may have at any time against the Seller Bank or PHH VMSany other Person, the Trustwhether or not arising in connection herewith;
(e) any failure to assert, or any other personassertion of, whether in connection herewith any claim or demand or any unrelated transactionsexercise of, or failure to exercise, any rights or remedies against the Borrowing Subsidiary or any other Person or Property;
(f) any invalidityapplication of any sums by whomsoever paid or howsoever realized to any obligation of either Borrower, illegality regardless of what obligations of the Borrowing Subsidiary remain unpaid;
(g) any invalidity or unenforceability relating to or against the Seller Borrowing Subsidiary for any reason of this Agreement or PHH VMS of any other Loan Document or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Borrowing Subsidiary of the Trust to payment and performance principal of the Obligations;
(h) any releaseor interest on Note Two, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of amount payable by it under the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingLoan Documents; or
(rh) any other act or omission to act or delay of any kind by the Seller or PHH VMS, the Trust Bank or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance GuarantorCompany under this Section 10.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 are continuing, hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuer under the Subscription Agreement or any Convertible Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementConvertible Note;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personIssuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Issuer contained in this Agreement or any of their assetsConvertible Note;
(ed) the existence of any claim, set-set off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuer, the Trust, Holder or any other person, whether in connection herewith with this Agreement or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality irregularity, or unenforceability relating to or against the Seller or PHH VMS or Issuer for any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingConvertible Note; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuer, the Trust Holder or any other person, person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Guarantee Agreement (China Technology Development Group Corp)
Guarantee Unconditional. The obligations of the Performance each Guarantor as a guarantor under this Article 8 are continuing, Section 4 shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligation, security, person Loan Obligation of the Company or of any other Guarantor under this Agreement or any other Loan Document whether by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreementother Loan Document;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control of the Seller or PHH VMS or any other personownership of, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting affecting, the Seller or PHH VMS or Company, any other personGuarantor, or any of their respective assets, or any resulting release or discharge of any Loan Obligation of the Company or of any other Guarantor contained in any Loan Document;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller any Agent or PHH VMSLender or any other Person, the Trustwhether or not arising in connection herewith;
(e) any failure to assert, or any other personassertion of, whether in connection herewith any claim or demand or any unrelated transactionsexercise of, or failure to exercise, any rights or remedies against the Company or any other Guarantor;
(f) any invalidityapplication of any sums by whomsoever paid or howsoever realized to any obligation of the Company, illegality regardless of what obligations of the Company remain unpaid,
(g) any invalidity or unenforceability relating to or against the Seller Company or PHH VMS any other Guarantor for any reason of this Agreement or of any other Loan Document or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any releaseNote, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of amount payable by it under the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingLoan Documents; or
(rh) any other act or omission to act or delay of any kind by the Seller any Agent or PHH VMS, the Trust Lender or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Section 4.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Pro Fac Cooperative Inc)
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 are continuing, II shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of any other Obligor under any Financing Document, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made any Financing Document (other than as specified in an amendment or waiver of this Subsidiary Guarantee effected in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementSection 4.03);
(c) any modification, amendment, waiver, release, non-perfection or invalidity of any directdirect or indirect security, indirect or collateral security of any guaranty or other liability of any third party, for any Obligationobligation of any other Obligor under any Financing Document;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personObligor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller any other Obligor or PHH VMS its assets or any resulting release or discharge of any obligation of any other person, or Obligor contained in any of their assetsFinancing Document;
(e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSany other Obligor, the TrustAgent, any Bank or any other personPerson, whether or not arising in connection herewith with the Financing Documents; provided that nothing herein shall prevent the assertion of any such claim by separate suit or any unrelated transactionscompulsory counterclaim;
(f) any invalidity, illegality invalidity or unenforceability relating to or against the Seller or PHH VMS any other Obligor for any reason of any Financing Document, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Obligor of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Promissory Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising amount payable by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust Obligor under any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingFinancing Document; or
(rg) any other act or omission to act or delay of any kind by the Seller or PHH VMSany other Obligor, the Trust Agent, any Bank or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Article II.
Appears in 1 contract
Guarantee Unconditional. (i) The obligations of the Performance Guarantor each Credit Party under this Article 8 X are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired limited or otherwise affected by (and the Performance Guarantor each Credit Party hereby consents to or waives, as applicable, to the fullest extent permitted by applicable law):
): (a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any Obligation, security, person Person or otherwise;
; (b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwiseObligations, including, without limitation, including any increase or decrease in any amount the principal, the rates of interest or other amounts payable under this Agreement;
thereunder; (c) any release, non-non perfection or invalidity of any direct, direct or indirect or collateral security for any Obligation;
; (d) any change in the existence, structure, constitution, name, objects, powers, business business, control or control ownership of the Seller or PHH VMS any Borrower or any other personPerson, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or PHH VMS any Borrower or any other person, person or any of their its assets;
; (e) the existence of any claim, set-off setoff or other rights which the Performance Guarantor any Credit Party may have at any time against the Seller or PHH VMSany Borrower, the TrustAdministrative Agent, the Collateral Agent, the Funding Agent, any Lender, or any other personPerson, whether in connection herewith or any unrelated transactions;
; (f) any invalidity, illegality or unenforceability relating to or against the Seller or PHH VMS any Borrower or any provision of applicable law or regulation purporting to prohibit the payment or performance by any Borrower of the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
interest under the Obligations; (g) any limitation, postponement, prohibition, subordination or other restriction on the right rights of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to payment and performance of the Obligations;
; (h) any release, substitution or addition of any co-signercosigner, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any guarantor of the Obligations;
; (i) any defence defense arising by reason of any failure by of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to make any presentment, demand for performance, notice of non-non performance, protest or protest, and any other notice, including notice of any all of the following: acceptance of this AgreementArticle X, partial payment or non-payment, a partial performance or non-performance non payment of all or any part of the Obligations and the existence, creation creation, or incurring of new or additional Obligations;
; (j) any defence defense arising by reason of any failure by of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to proceed against the Seller or PHH VMS any Borrower or any other personPerson, to proceed against, apply or exhaust any security held, or granted by or held from the Seller or PHH VMS any Borrower or any other person, Person for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor any Credit Party or any other person Person for this Agreement Article X or to pursue any other remedy in the power of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender whatsoever;
; (k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
; (l) any defence defense arising by reason of any incapacity, lack of authority authority, or other defence defense of the Seller or PHH VMS any Borrower or any other personPerson, or by reason of any limitation, postponement, prohibition on the TrustAdministrative Agent’s, the Collateral Agent’s, the Funding Agent’s, ’s or any Lender’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS any Borrower or any other person, Person with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, any Lender or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS any Borrower or any other person, of Person or all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
; (m) any defence defense arising by reason of any failure by the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS any Borrower or any other personPerson, or by reason of any interest of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender in any property, whether as owner, lessee or bailee owner thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender of any right to recourse or collateral;
; (n) any defence defense arising by reason of the failure by of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to marshal ▇▇▇▇▇▇▇▇ any assets;
; (o) any defence defense based upon any failure by of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to give to the Seller any Borrower or PHH VMS or the Performance Guarantor any Credit Party notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, including any failure by the Trust Administrative Agent, the Collateral Agent, the Funding Agent, to dispose of any such property in a commercially reasonable manner;
; (p) any dealing whatsoever with the Seller any Borrower or PHH VMS or any other person, Person or any security, whether negligently or improvidently or not, or any failure to do so;
; (q) any defence defense based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS any Borrower or any other personPerson, or including any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; or
or (r) any other act or omission to act or delay of any kind by the Seller or PHH VMSany Borrower, the Trust Administrative Agent, the Collateral Agent, the Funding Agent, any Lender, or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 8.4Article X, constitute a legal or equitable discharge, limitation or reduction of the Performance Guarantorany Credit Party’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender is to destroy or diminish the Performance Guarantorany Credit Party’s subrogation rights, the Performance Guarantoreach Credit Party’s right to proceed against the Seller or PHH VMS any Borrower for reimbursement, the Performance Guarantoreach Credit Party’s right to recover contribution from any other guarantor or any other right or remedy which may be available remedy.
(ii) At such time (if any) when the Australian Obligors are fully released from its obligations and liabilities as guarantors and grantors of Liens pursuant to the Performance Guarantorterms and conditions of the First Lien Facilities, the Administrative Agent and the Collateral Agent shall, promptly upon the written request of the Borrowers and at their sole expense, release the Australian Obligors from its obligations and liabilities as Guarantors hereunder and as “Guarantors” and “Grantors” under (and as defined in) the Security Agreement and the other Collateral Documents to which the Australian Obligors are a party, and the Administrative Agent and the Collateral Agent shall execute and deliver to the Borrowers all such other releases or documents reasonable necessary or desirable for the release of such obligations, liabilities and Liens.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Thermadyne Holdings Corp /De)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoingforegoing and except as expressly set forth herein, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuers under this Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personan Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller an Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of an Issuer contained in this Indenture or any of their assetsNote;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuers, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller an Issuer for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right an Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Issuers under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuers, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4Section, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (Valaris LTD)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 are continuing, hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Borrowers under the Credit Agreement or any other Credit Document or any obligation of any Guarantor hereunder or under any Security Document, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents Credit Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreementother Credit Document;
(c) any release, non-perfection or invalidity of any direct, direct or indirect or collateral security for any Obligationobligation of the Borrowers under the Credit Agreement or any other Credit Document or any obligation of the Guarantor hereunder or under any Security Document;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personBorrowers, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Borrowers or PHH VMS its assets or any resulting release or discharge of any obligation of the Borrowers contained in the Credit Agreement or any other person, or any of their assetsCredit Document;
(e) the existence of any claim, set-off or other rights which the Performance any Guarantor may have at any time against the Seller or PHH VMSBorrowers, the TrustAdministrative Agent, the Security Trustee, any Lender or any other personPerson, whether in connection herewith or any unrelated transactions;
(f) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Borrowers for any reason of the Credit Agreement or PHH VMS any other Credit Document or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Borrowers of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Loan or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Borrowers under the Seller or PHH VMS Credit Agreement or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingCredit Document; or
(rg) any other act or omission to act or delay of any kind by the Seller or PHH VMSBorrowers, any Guarantor, the Trust Administrative Agent, the Security Trustee, any Lender or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance each Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance New Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(ed) the existence of any claim, set-off or other rights which the Performance any Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Company under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance any Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (Natura &Co Holding S.A.)
Guarantee Unconditional. The Except as provided in ----------------------- Section 9, the obligations of the Performance Supporting Guarantor under this Article 8 are continuing, Guaranty shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligation, security, person obligation of Vencor under any Financing Document by operation of law or otherwise;
(b) any modification modification, amendment or amendment waiver of or supplement to the Obligations made in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementFinancing Document;
(c) any release, impairment, non-perfection or invalidity of any directdirect or indirect security, indirect or collateral security of any guarantee or other liability of any third party, for any Obligationobligation of Vencor under any Financing Document;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS Vencor or any other personof its Subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or PHH VMS Vencor or any other personof its Subsidiaries or its assets, or any resulting release or discharge of their assetsany obligation of Vencor or any of its Subsidiaries contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which the Performance Supporting Guarantor or Vencor may have at any time against the Seller or PHH VMSany Bank, the Trustany LC Issuing Bank, any Agent or any other personPerson, whether or not arising in connection herewith with this Guaranty, provided that nothing -------- herein shall prevent the assertion of any such claim by separate suit or any unrelated transactionscompulsory counterclaim;
(f) any invalidity, illegality invalidity or unenforceability relating to or against the Seller or PHH VMS Vencor for any reason of any Financing Document, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS Vencor of any Obligation including, the payment of amount payable by it under any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingFinancing Document; or
(rg) any other act or omission to act or delay of any kind by the Seller or PHH VMSVencor, the Trust any Bank, any LC Issuing Bank, any Agent or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.44, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Supporting Guarantor’s 's obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Guaranty.
Appears in 1 contract
Sources: Credit Agreement (Vencor Inc)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS Company of any Obligation including, the payment principal of any principal or interest;
(g) , if any, on any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Company under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.413.02, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than hereunder. For the payment and extinguishment in full avoidance of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rightsdoubt, the Performance Guarantor’s right Guarantees with respect to proceed against the Seller a Note are not convertible or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor exchangeable and shall automatically terminate when such Note is converted or any other right or remedy which may be available to the Performance Guarantorexchanged in accordance with this Indenture.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance each Guarantor as a guarantor under this Article 8 are continuing, Section 9 shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by: ‑47‑
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligation, security, person obligation of the Company or of any other Guarantor under this Agreement or any other Loan Document or by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Agreement or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreementother Loan Document;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control of the Seller or PHH VMS or any other personownership of, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting affecting, the Seller or PHH VMS or Company, any other personGuarantor, or any of their respective assets, or any resulting release or discharge of any obligation of the Company or of any other Guarantor contained in any Loan Document;
(ed) the existence of any claim, set-off set‑off or other rights which the Performance Guarantor may have at any time against the Seller Bank or PHH VMSany other Person, the Trustwhether or not arising in connection herewith;
(e) any failure to assert, or any other personassertion of, whether in connection herewith any claim or demand or any unrelated transactionsexercise of, or failure to exercise, any rights or remedies against the Company, any other Guarantor or any other Person or Property;
(f) any invalidityapplication of any sums by whomsoever paid or howsoever realized to any obligation of the Company, illegality regardless of what obligations of the Company remain unpaid;
(g) any invalidity or unenforceability relating to or against the Seller Company or PHH VMS any other Guarantor for any reason of this Agreement or of any other Loan Document or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Company or any other notice, including notice of any Guarantor of the following: acceptance principal of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of interest on the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS Note or any other person, to proceed against, apply or exhaust any security held, or granted amount payable by or from it under the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingLoan Documents; or
(rh) any other act or omission to act or delay of any kind by the Seller or PHH VMS, the Trust Bank or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Section 9.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 Guarantee are continuing, unconditional and absolute andabsolute, and without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired limited or otherwise affected by (and the Performance Guarantor hereby consents to or waives, as applicable, to the fullest extent permitted by applicable lawLaw):
(ai) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any Obligationof the Guaranteed Obligations, security, person Person or otherwise;
(bii) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwiseGuaranteed Obligations, including, without limitation, including any increase or decrease in any amount payable under this Agreementthereof;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(diii) any change in the existence, structure, constitution, name, objects, powers, business business, control or control ownership of the Seller or PHH VMS Buyer or any other personPerson, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or PHH VMS Buyer or any other person, Person or any of their its assets;
(e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMS, the Trust, or any other person, whether in connection herewith or any unrelated transactions;
(fiv) any invalidity, illegality or unenforceability relating to or against the Seller or PHH VMS Buyer or any provision of applicable law or regulation Law purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Buyer of the Trust to payment and performance of the Guaranteed Obligations;
(hv) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence defense arising by reason of any failure by of the Trust Seller to make any presentment, demand for performance, notice of non-performance, protest or protest, and any other notice, notice (including notice of any of the following: acceptance of this Agreementguarantee, partial payment or non-payment, a partial performance or non-performance payment of all or any part of the Guaranteed Obligations and the existence, creation creation, or incurring of new or additional Guaranteed Obligations);
(jvi) any defence defense arising by reason of any failure by of the Trust Seller to proceed against the Seller or PHH VMS Buyer or any other personPerson, to proceed against, apply or exhaust any security held, or granted by or held from the Seller or PHH VMS Buyer or any other person, Person for any of the Guaranteed Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person Person for this Agreement Guarantee or to pursue any other remedy in the power of the Trust Seller whatsoever;
(kvii) any law Law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(lviii) any defence defense arising by reason of any incapacity, lack of authority authority, or other defence defense of the Seller or PHH VMS Buyer or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;Person; or
(mix) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence defense based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS Buyer or any other personPerson, or including any discharge of, or bar against collecting, any of the Guaranteed Obligations, in or as a result of any such proceeding; or
(r) any other act or omission to act or delay of any kind by the Seller or PHH VMS, the Trust or any other person, or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 8.4, constitute a legal or equitable discharge, limitation or reduction of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantor.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) 2.2.1 any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under the Indenture or any Note, security, person by operation of law or otherwise;
(b) 2.2.2 any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) 2.2.3 any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in the Indenture or any of their assetsNote;
(e) 2.2.4 the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions; PROVIDED that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f) 2.2.5 any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of the Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r) 2.2.6 any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Second Supplemental Indenture (JBS USA Holdings, Inc.)
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article Section 8 are continuing, shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of any other Obligor under any Loan Document, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementLoan Document;
(c) any modification, amendment, waiver, release, non-perfection or invalidity of any directdirect or indirect security, indirect or collateral security of any guarantee or other liability of any third party, for any Obligationobligation of any other Obligor under any Loan Document;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personObligor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller any other Obligor or PHH VMS its assets or any resulting release or discharge of any obligation of any other person, or Obligor contained in any of their assetsLoan Document;
(e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMS, the Trust, any other Obligor or any other personPerson, whether or not arising in connection herewith with any Loan Document, provided that nothing herein shall prevent the assertion of any such claim by separate suit or any unrelated transactionscompulsory counterclaim;
(f) any invalidity, illegality invalidity or unenforceability relating to or against the Seller or PHH VMS any other Obligor for any reason of any Loan Document, or any provision of applicable law or regulation purporting to prohibit the payment by any other Obligor of the principal of or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction interest on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of amount payable by it under any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingLoan Document; or
(rg) any other act or omission to act or delay of any kind by the Seller or PHH VMSany other Obligor, the Trust any Lender or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation or reduction discharge of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorunder this Section 8.
Appears in 1 contract
Sources: Loan, Security, and Guaranty Agreement (Precision Partners Inc)
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 are continuing, 2 shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of any other Obligor under any Financing Document, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made any Financing Document (other than as specified in an amendment or waiver of this Subsidiary Guarantee effected in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementSection 3);
(c) any modification, amendment, waiver, release, non-perfection or invalidity of any directdirect or indirect security, indirect or collateral security of any guaranty or other liability of any third party, for any Obligationobligation of any other Obligor under any Financing Document;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personObligor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller any other Obligor or PHH VMS its assets or any resulting release or discharge of any obligation of any other person, or Obligor contained in any of their assetsFinancing Document;
(e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSany other Obligor, the TrustAgent, any Bank or any other personPerson, whether or not arising in connection herewith with the Financing Documents; provided that nothing herein shall prevent the assertion of any such claim by separate suit or any unrelated transactionscompulsory counterclaim;
(f) any invalidity, illegality invalidity or unenforceability relating to or against the Seller or PHH VMS any other Obligor for any reason of any Financing Document, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Obligor of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Promissory Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising amount payable by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust Obligor under any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingFinancing Document; or
(rg) any other act or omission to act or delay of any kind by the Seller or PHH VMSany other Obligor, the Trust Agent, any Bank or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which whatsoever that might, but for the provisions of this Section 8.4, constitute a legal or equitable discharge, limitation or reduction of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantor.for
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 are continuing, Guarantee shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under the Indenture or the Securities, security, person by operation of law or otherwise;
(b) any modification or amendment of of, or supplement to to, the Obligations made Indenture or the Securities (other than a modification, amendment or supplement effected in accordance with the Transaction Documents terms of the Indenture which expressly releases, discharges or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreementotherwise affects the Guarantee);
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of their assetsthe Company contained in the Indenture or the Securities;
(ed) the existence of any claim, set-off or other rights which right that the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or an unrelated transaction, provided that nothing herein prevents the assertion of any unrelated transactionssuch claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality irregularity or unenforceability relating to to, or against the Seller Company for any reason of, the Indenture or PHH VMS the Securities, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller Company of the principal of or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction interest on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Securities or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.41.02, constitute a legal or equitable discharge, limitation discharge of or reduction of defense to the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers an act contemplated by the Performance Guarantor will be effectiveparenthetical in Section 1.02(b) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorabove).
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Freeport McMoran Copper & Gold Inc)
Guarantee Unconditional. The obligations of the Performance Parent Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under the Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of their assetsthe Company;
(ed) the existence of any claim, set-off or other rights which the Performance Parent Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Supplemental Indenture or the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Supplemental Indenture, the Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against Company under the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to Parent Guarantor’s obligations hereunder (other than the payment and extinguishment in full of the principal of, premium, if any, and interest on the Notes and all of the Obligations). The foregoing provisions apply (and the foregoing waivers other amounts payable by the Performance Guarantor will be effective) even if Company under the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance GuarantorIndenture).
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 Guarantee are continuing, unconditional and absolute andabsolute, and without limiting the generality of the foregoing, shall will not be released, discharged, diminished, limited, impaired limited or otherwise affected by (and the Performance Guarantor hereby consents to or waives, as applicable, to the fullest extent permitted by applicable lawLaw):
(ai) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any Obligationof the Guaranteed Obligations, security, person Person or otherwise;
(bii) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwiseGuaranteed Obligations, including, without limitation, including any increase or decrease in any amount payable under this Agreementthereof;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(diii) any change in the existence, structure, constitution, name, objects, powers, business business, control or control ownership of the Seller or PHH VMS Buyer or any other personPerson, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller or PHH VMS Buyer or any other person, Person or any of their its assets;
(e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMS, the Trust, or any other person, whether in connection herewith or any unrelated transactions;
(fiv) any invalidity, illegality or unenforceability relating to or against the Seller or PHH VMS Buyer or any provision of applicable law or regulation Law purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Buyer of the Trust to payment and performance of the Guaranteed Obligations;
(hv) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence defense arising by reason of any failure by the Trust of any Seller to make any presentment, demand for performance, notice of non-performance, protest or protest, and any other notice, notice (including notice of any of the following: acceptance of this Agreementguarantee, partial payment or non-payment, a partial performance or non-performance payment of all or any part of the Guaranteed Obligations and the existence, creation creation, or incurring of new or additional Guaranteed Obligations);
(jvi) any defence defense arising by reason of any failure by the Trust of any Seller to proceed against the Seller or PHH VMS Buyer or any other personPerson, to proceed against, apply or exhaust any security held, or granted by or held from the Seller or PHH VMS Buyer or any other person, Person for any of the Guaranteed Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person Person for this Agreement Guarantee or to pursue any other remedy in the power of the Trust Sellers whatsoever;
(kvii) any law Law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(lviii) any defence defense arising by reason of any incapacity, lack of authority authority, or other defence defense of the Seller or PHH VMS Buyer or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;Person; or
(mix) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence defense based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS Buyer or any other personPerson, or including any discharge of, or bar against collecting, any of the Guaranteed Obligations, in or as a result of any such proceeding; or
(r) any other act or omission to act or delay of any kind by the Seller or PHH VMS, the Trust or any other person, or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 8.4, constitute a legal or equitable discharge, limitation or reduction of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantor.
Appears in 1 contract
Guarantee Unconditional. (a) The obligations of the Performance Guarantor under this Article 8 each Guaranteeing Subsidiary hereunder are continuingdirect, unsubordinated, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiverfailure to enforce, subordination waiver or release in respect of any Obligationobligation of the Issuers under the Indenture, securitythis Supplemental Indenture or under the Notes, person by operation of law or otherwise;
(b2) any rescission, waiver or, subject to Section 10.03 of the Indenture, any modification or amendment of or supplement to to, the Obligations made in accordance with Indenture or the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNotes;
(c3) any release, non-perfection the occurrence or invalidity notice of any direct, indirect default or collateral security for event of default under the Indenture or under any Obligationother agreement;
(d4) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personan Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller an Issuer or PHH VMS their assets or any other person, resulting release or discharge of any obligation of their assetsan Issuer contained under the Indenture or under the Notes;
(e5) the existence of any claim, set-off setoff or other rights which the Performance Guarantor such Guaranteeing Subsidiary may have at any time against the Seller or PHH VMSan Issuer, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f6) any invalidity, illegality invalidity or unenforceability relating to or against an Issuer for any reason of the Seller Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment by an Issuer of the principal of or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction interest on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Notes or any other notice, including notice of any of amount payable by an Issuer under the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r7) any other act or omission to act or delay of any kind by the Seller or PHH VMSan Issuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance Guarantordefense to such Guaranteeing Subsidiary’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Supplemental Indenture (Foresight Energy Partners LP)
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoingforegoing and except as expressly set forth herein, shall will not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Issuers under this Indenture or any Note, security, person by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(d) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personan Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller an Issuer or PHH VMS its assets or any other person, resulting release or discharge of any obligation of an Issuer contained in this Indenture or any of their assetsNote;
(ed) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSIssuers, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fe) any invalidity, illegality invalidity or unenforceability relating to or against the Seller an Issuer for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation Applicable Law purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right an Issuer of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Issuers under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rf) any other act or omission to act or delay of any kind by the Seller or PHH VMSIssuers, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4Section, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance Guarantor under this Article 8 are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall Guarantee will not be released, discharged, diminished, limited, impaired limited or otherwise affected by (and the Performance Guarantor hereby consents to or waives, as applicable, to the fullest extent permitted by applicable law):
): (a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination compromise or release waiver in respect of the Obligations or any Obligation, security, person or otherwise;
security for the Obligations; (b) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this Agreement;
Obligations; (c) any release, non-perfection or invalidity of any direct, direct or indirect or collateral security for any Obligation;
the Obligations; (d) any change in the existence, structure, constitution, name, objects, powers, business business, control or control ownership of the Seller or PHH VMS or any other personVendor, or any insolvency, bankruptcy, reorganization or other similar proceeding of or affecting the Seller Vendor or PHH VMS or any other person, or any of their assets;
its assets (e) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMS, the Trust, or any other person, whether in connection herewith or any unrelated transactions;
(f) any invalidity, illegality or unenforceability relating to or against the Seller or PHH VMS or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by of the Trust Purchaser to make any presentment, demand for performance, notice of non-performance, protest performance or any other notice, including notice of any all of the following: acceptance of this AgreementGuarantee, partial payment or non-payment, a partial performance or non-performance payment of all or any part of the Obligations and the existence, creation creation, or incurring of new or additional Obligations;
; (jf) any defence arising by reason of any failure by of the Trust Purchaser to proceed against the Seller or PHH VMS or any other personVendor, to proceed against, apply or exhaust any security held, or granted by or held from the Seller or PHH VMS Vendor or any other person, Person for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person Person for this Agreement Guarantee or to pursue any other remedy in the power of the Trust Purchaser whatsoever;
; (k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(lg) any defence arising by reason of any incapacity, incapacity or lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
Vendor; (m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(nh) any defence arising by reason of the failure by of the Trust Purchaser to marshal marshall any assets;
; (o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(qi) any defence based upon or arising out of any bankruptcy▇▇▇▇▇▇▇tcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or Vendor, including without limitation, that based on the failure to file any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; or
(r) any other act or omission to act or delay of any kind by the Seller or PHH VMS, the Trust or any other person, or any other circumstance whatsoever, whether similar or dissimilar claim relating to the foregoingObligations owing to the Purchaser if the Vendor becomes subject to a bankruptcy, which might, but for the provisions of this Section 8.4, constitute a legal reorganization or equitable discharge, limitation or reduction of the Performance Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations)similar proceeding. The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust Purchaser is to destroy or diminish the Performance Guarantor’s 's subrogation rights, the Performance Guarantor’s 's right to proceed against the Seller or PHH VMS Vendor for reimbursement, the Performance Guarantor’s 's right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorremedy.
Appears in 1 contract
Sources: Guarantee (Parker Drilling Co /De/)
Guarantee Unconditional. (a) The obligations of the Performance MLP Guarantor under this Article 8 hereunder are continuingdirect, unsubordinated, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired discharged or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):by:
(a1) any extension, other indulgence, renewal, settlement, discharge, compromise, waiverfailure to enforce, subordination waiver or release in respect of any Obligationobligation of the Issuers under the Indenture, securitythis Supplemental Indenture or under the Notes, person by operation of law or otherwise;
(b2) any rescission, waiver or, subject to Section 10.03 of the Indenture, any modification or amendment of or supplement to to, the Obligations made in accordance with Indenture or the Transaction Documents or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNotes;
(c3) any release, non-perfection the occurrence or invalidity notice of any direct, indirect default or collateral security for event of default under the Indenture or under any Obligation;other agreement,
(d4) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personan Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller an Issuer or PHH VMS their assets or any other person, resulting release or discharge of any obligation of their assetsan Issuer contained under the Indenture or under the Notes;
(e5) the existence of any claim, set-off set‑off or other rights which the Performance MLP Guarantor may have at any time against the Seller or PHH VMSan Issuer, the Trust, Trustee or any other personPerson, whether in connection herewith with the Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(f6) any invalidity, illegality invalidity or unenforceability relating to or against an Issuer for any reason of the Seller Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment by an Issuer of the principal of or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction interest on the right of the Trust to payment and performance of the Obligations;
(h) any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Notes or any other notice, including notice of any of amount payable by an Issuer under the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(r7) any other act or omission to act or delay of any kind by the Seller or PHH VMSan Issuer, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such MLP Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Guarantee Unconditional. The obligations of the Performance each Guarantor under this Article 8 hereunder are continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged, diminished, limited, impaired or otherwise affected by (and the Performance Guarantor hereby waives, to the fullest extent permitted by applicable law):, will not be released, discharged or otherwise affected by
(aA) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination waiver or release in respect of any Obligationobligation of the Company under this Indenture or any Note, security, person by operation of law or otherwise;
(bB) any modification or amendment of or supplement to the Obligations made in accordance with the Transaction Documents this Indenture or otherwise, including, without limitation, any increase or decrease in any amount payable under this AgreementNote;
(c) any release, non-perfection or invalidity of any direct, indirect or collateral security for any Obligation;
(dC) any change in the corporate existence, structure, constitution, name, objects, powers, business structure or control ownership of the Seller or PHH VMS or any other personCompany, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Seller Company or PHH VMS its assets or any other person, resulting release or discharge of any obligation of the Company contained in this Indenture or any of their assetsNote;
(eD) the existence of any claim, set-off or other rights which the Performance Guarantor may have at any time against the Seller or PHH VMSCompany, the Trust, Trustee or any other personPerson, whether in connection herewith with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(fE) any invalidity, illegality invalidity or unenforceability relating to or against the Seller Company for any reason of this Indenture or PHH VMS any Note, or any provision of applicable law or regulation purporting to prohibit the payment or performance by the Seller or PHH VMS of any Obligation including, the payment of any principal or interest;
(g) any limitation, postponement, prohibition, subordination or other restriction on the right Company of the Trust to payment and performance principal of the Obligations;
(h) or interest on any release, substitution or addition of any co-signer, endorser or other guarantor, including, without limitation, the Seller or PHH VMS, of any of the Obligations;
(i) any defence arising by reason of any failure by the Trust to make any presentment, demand for performance, notice of non-performance, protest Note or any other notice, including notice of any of the following: acceptance of this Agreement, partial payment or non-payment, a partial performance or non-performance of all or any part of the Obligations and the existence, creation or incurring of new or additional Obligations;
(j) any defence arising by reason of any failure amount payable by the Trust to proceed against the Seller or PHH VMS or any other person, to proceed against, apply or exhaust any security held, or granted by or from the Seller or PHH VMS or any other person, for any of the Obligations, to proceed against, apply or exhaust any security held from the Performance Guarantor or any other person for Company under this Agreement or to pursue any other remedy in the power of the Trust whatsoever;
(k) any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligation;
(l) any defence arising by reason of any incapacity, lack of authority or other defence of the Seller or PHH VMS or any other person, or by reason of any limitation, postponement, prohibition on the Trust’s right to payment of the Obligations or any part thereof, or by reason of the cessation from any cause whatsoever of the liability of the Seller or PHH VMS or any other person, with respect to all or any part of the Obligations, or by reason of any act or omission of the Trust or others which directly or indirectly results in the discharge or release of the Seller or PHH VMS or any other person, of all or any part of the Obligations or any security or guarantee therefor, whether by contract, operation of law or otherwise;
(m) any defence arising by reason of any failure by the Trust to obtain, perfect or maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any property of the Seller or PHH VMS or any other person, or by reason of any interest of the Trust in any property, whether as owner, lessee or bailee thereof or as the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by the Trust of any right to recourse or collateral;
(n) any defence arising by reason of the failure by the Trust to marshal any assets;
(o) any defence based upon any failure by the Trust to give to the Seller or PHH VMS or the Performance Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of the Trust to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including, without limitation, any failure by the Trust to dispose of any such property in a commercially reasonable manner;
(p) any dealing whatsoever with the Seller or PHH VMS or any other person, or any security, whether negligently or improvidently or not, or any failure to do so;
(q) any defence based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Seller or PHH VMS or any other person, or any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceedingIndenture; or
(rF) any other act or omission to act or delay of any kind by the Seller or PHH VMSCompany, the Trust Trustee or any other person, Person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, whatsoever which might, but for the provisions of this Section 8.4paragraph, constitute a legal or equitable discharge, limitation discharge of or reduction of the Performance defense to such Guarantor’s obligations hereunder (other than the payment and extinguishment in full of all of the Obligations). The foregoing provisions apply (and the foregoing waivers by the Performance Guarantor will be effective) even if the effect of any action (or failure to take action) by the Trust is to destroy or diminish the Performance Guarantor’s subrogation rights, the Performance Guarantor’s right to proceed against the Seller or PHH VMS for reimbursement, the Performance Guarantor’s right to recover contribution from any other guarantor or any other right or remedy which may be available to the Performance Guarantorhereunder.
Appears in 1 contract
Sources: Indenture (SB/RH Holdings, LLC)