Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following: (i) the invalidity or unenforceability of any Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party; (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party; (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding; (iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor; (v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor; (vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations; (vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor; (A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or (ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance. (b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Sources: Guaranty and Collateral Agreement (Rex Energy Corp), Guaranty and Second Lien Collateral Agreement (Rex Energy Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty Agreement shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of its Guaranty Obligations and Guaranty Expenses and not of their collectability only and is in no way conditioned upon any requirement that Buyer or Repo Agent first attempt to collect any of the Guaranty Obligations or Guaranty Expenses from Sellers or upon (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor the Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Facility Document, any of the Borrower Guaranty Obligations or any other collateral security Guaranty Expenses therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Buyer or Repo Agent, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller A against Buyer or Repo Agent, (c) the Borrower lack of authority of Seller A to execute or deliver the Repurchase Agreement, (d) any change in the time, manner or place of payment of, or in any other term of, or amendment to the Repurchase Agreement, (e) any waiver or consent by Buyer or Repo Agent with respect to any provisions of the Repurchase Agreement or any other Person against compromise or release of any Secured Party;
of the obligations thereunder, (iiif) the absence of any action to enforce the Repurchase Agreement, to recover any judgment against Seller A or to enforce a judgment against Sellers under the Repurchase Agreement, (g) the occurrence of any Event of Default or Default under the Repurchase Agreement, (h) the existence of bankruptcy, insolvency, bankruptcy arrangementreorganization or similar proceedings involving Sellers, (i) any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, collateral securing the Repurchase Agreement, (j) any change in the laws, rules or regulations of any jurisdiction, (k) any present or future action of any Governmental Authority or court amending, varying, reducing or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the obligations of Sellers under the Repurchase Agreement or of Guarantor under this Guaranty Agreement, (l) the reorganization, adjustment, composition, liquidation, disability, dissolution merger or lack consolidation of power of the Borrower either Seller into or with any other corporation or entity, (m) if any payment by Seller A to Buyer or Repo Agent is held to constitute a preference under bankruptcy laws, or for any reason Buyer or Repo Agent is required to refund such payment or pay such amount to Seller A, Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixn) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Sellers or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in from this Article IIGuaranty Agreement, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Repo Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust (i) such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller A or any other Person or against any collateral security or guarantee for the Borrower Obligations or (ii) any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, Repo Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller A or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Seller A or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Secured Party Repo Agent against any Guarantor. For This Guaranty Agreement shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and its successors and assigns, and shall include inure to the commencement benefit of Buyer and continuance of any legal proceedingsRepo Agent, and their respective successors, indorsees, transferees and assigns, until the Termination Date shall have occurred.
Appears in 2 contracts
Sources: Guaranty Agreement (Angel Oak Mortgage, Inc.), Guaranty Agreement (Angel Oak Mortgage, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor Guarantor, by joining herein, understands and agrees that the guarantee contained in this Article II Section 14 is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Secured Note Document, any of the Borrower Guarantied Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyHolder;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower any Obligor or any other Person against any Secured PartyHolder;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower any Obligor or any other Guarantor or any other Person at any time liable for the payment of all or part of the Guarantied Obligations, including any discharge of, or bar or stay against collecting, any Guarantied Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower any Obligor or any other Guarantor, or any changes in the shareholders Equity Interest holders of any Obligor or the Borrower or any other Guarantor;
(v) any change in the corporate entity existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor Obligor or in the relationship between the Borrower and any Grantorother Guarantor;
(vi) the fact that any Collateral collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guarantied Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral collateral for the Guarantied Obligations;
(vii) the absence of any attempt to collect the Guarantied Obligations or any part of them from any GrantorObligor or any Guarantor;
(A) any Secured PartyHolder’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrowerany Obligor, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyHolder’s claim (or claims) for repayment of the Guarantied Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Holders or any of them for any reason; or (G) failure by any Secured Party Holder to file or enforce a claim against the Borrower any Obligor or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 14.4 (with or without notice to or knowledge of the Borrower any Obligor or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Obligors for the Borrower Guarantied Obligations, or of such Guarantor under the guarantee contained in this Article IISection 14, in bankruptcy or in any other instanceinstance (other than payment or performance).
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrowerany Obligor, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guarantied Obligations or any right of offset with respect thereto, and any failure by any Secured Party Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrowerany Obligor, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrowerany Obligor, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Holder against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Sources: Note Purchase Agreement (Glori Energy Inc.), Note Purchase Agreement (Glori Energy Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands hereby waives any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Holder upon the guaranty contained in this Article II isSection 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Purchaser and Éclat and Guarantor, on the one hand, and the Holder, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Guarantor hereby waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Purchaser or Éclat or Guarantor with respect to the Obligations. Guarantor understands that the guaranty contained in this Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives any defense of a surety performance without regard to (a) the validity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following Note Agreement, the Security Agreements and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentInterest Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Holder, (iib) any defense, set-off or counterclaim (other than a defense of actual payment or performanceand performance of all Obligations) which may at any time be available to or be asserted by the Borrower Purchaser or Éclat or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofHolder, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Purchaser or Éclat for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor Purchaser or Éclat or any other Person or against any collateral security or guarantee other guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Purchaser or Éclat or any other Person or to realize upon any such collateral security or guarantee other guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Purchaser or Éclat or any other Person or any such collateral security, guarantee other guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Holder against any Guarantor. For The obligations of the purposes hereof “demand” shall include Guarantor are principal and independent obligations from the commencement obligations of the parties to the Note Agreement, the Security Agreements, the Interest Agreement or any other agreement. Therefore, the Guarantor cannot, in order to delay or to avoid the unconditional and continuance immediate performance of its obligations under this Guaranty, invoke any defense or exception relating to or resulting from any current or future relationships (including legal proceedingsrelationships) nor any contentious or non-contentious claims, between the Purchaser and the Holder or any other third party, or any other challenge or the Purchaser or of a third party.
Appears in 2 contracts
Sources: Guaranty (Avadel Pharmaceuticals PLC), Guaranty (Flamel Technologies Sa)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Buyer upon this Limited Guaranty or acceptance of this Limited Guaranty, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Limited Guaranty; and all dealings between Seller and Guarantor, on the one hand, and Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Limited Guaranty.
(b) Except as otherwise expressly provided herein or in the Facility Documents, Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Limited Guaranty, notices of sale, notice of default or nonpayment to or upon Seller or Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this Article II is, and Limited Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Secured Documentthe Repurchase Agreement, any of the Borrower Obligations, Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against Buyer, or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of Seller from the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in from this Article IILimited Guaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor.
(e) This Limited Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Guarantor under this Limited Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto Seller may be free from any Secured Party against any Guarantor. For Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 2 contracts
Sources: Guaranty (FS Credit Real Estate Income Trust, Inc.), Limited Guaranty (FS Credit Real Estate Income Trust, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor, to the fullest extent permitted by Applicable Law, waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations, notice of or proof of reliance by any Secured Party upon this Guaranty, and notice of acceptance of this Guaranty. The Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty and all dealings between the Borrowers and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Each Guarantor, to the fullest extent permitted by Applicable Law, waives diligence, presentment, protest, demand for payment, dishonor, and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations, notice of any kind to which such Guarantor may be entitled, and any other act or thing, or omission or delay to do any other act or thing, which in any manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to discharge such Guarantor from any of its Guaranteed Obligations.
(c) Each Guarantor waives, to the fullest extent permitted by Applicable Law, any right such Guarantor may now have or hereafter acquire to revoke, rescind, terminate or limit (except as expressly provided herein) this Guaranty or any of its obligations hereunder.
(d) Each Guarantor understands and agrees that that, to the guarantee contained in fullest extent permitted by Applicable Law, this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of the Loan Agreement or any Secured other Loan Document, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower each Borrower, any other Guarantor or any other Person against any Secured Party;
Party (other than the defense of payment in full), or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the such Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the each Borrower for the Borrower with respect to any Obligations, or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
(e) Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the documents evidencing such Guaranteed Obligations, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Collateral Agent or any other Secured Party with respect thereto. To the extent permitted by Applicable Law, the liability of each Guarantor under this Guaranty shall be absolute, irrevocable and unconditional in accordance with its terms and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including without limitation, the following (whether or not such Guarantor consents thereto or has notice thereof), and each Guarantor hereby irrevocably waives any defenses (other than, in each case, the defense of payment in full) it may now have or hereafter acquire in any way relating to, any or all of the following:
(i) (x) any change in the amount, interest rate, due date or other term of all or any portion of the Guaranteed Obligations, (y) any change in the time, place or manner of payment of all or any portion of the Guaranteed Obligations, or (z) any amendment, release, consent to the departure from, or other indulgence with respect to, or any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action or inaction under or in respect of, the Loan Agreement, any of the other Loan Documents or any other documents, instruments or agreements relating to all or any portion of the Guaranteed Obligations or any other instrument or agreement referred to therein or evidencing all or any portion of the Guaranteed Obligations or any assignment or transfer of any of the foregoing;
(ii) any lack of validity or enforceability of the Loan Agreement, any of the other Loan Documents, or any other document, instrument or agreement referred to therein or evidencing all or any portion of the Guaranteed Obligations or any assignment or transfer of any of the foregoing;
(iii) any furnishing to the Collateral Agent or any other Secured Party of any security for all or any portion of the Guaranteed Obligations, or any sale, exchange, release or surrender of, or realization on, any collateral securing all or any portion of the Guaranteed Obligations unless resulting in the payment in full of the Guaranteed Obligations;
(iv) any settlement or compromise of all or any portion of the Guaranteed Obligations (unless resulting in payment in full of the Guaranteed Obligations), any security therefor, or any liability of any other party with respect to all or any portion of the Guaranteed Obligations, or any subordination of the payment of all or any portion of the Guaranteed Obligations to the payment of any other liability of any Borrower or any other Loan Party;
(v) any Insolvency Proceeding relating to such Guarantor, any Borrower, any other Loan Party or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver, or by any court, in any such Insolvency Proceeding;
(vi) any act or failure to act by any Borrower, any other Loan Party or any other Person which may adversely affect such Guarantor’s subrogation rights, if any, against any Borrower to recover payments made under this Guaranty;
(vii) any release, amendment or waiver of, or consent to any departure from, any guaranty of all or any portion of the Guaranteed Obligations;
(viii) any pledge, exchange, release or non-perfection or impairment of any security interest or other Lien on any Collateral or other collateral securing in any way all or any portion of the Guaranteed Obligations;
(ix) any application of sums paid by any Borrower, any other Guarantor or any other Person with respect to the liabilities of each Borrower to the Collateral Agent or any other Secured Party, regardless of what liabilities of each Borrower remain unpaid;
(x) any defect, limitation or insufficiency in the borrowing power of any Borrower or any Guarantor or in the exercise thereof;
(xi) any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect of this Agreement, the Loan Agreement or any other Loan Document; or
(xii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a Guarantor hereunder (other than the payment in full in cash and performance in full of the Obligations (other than Unasserted Contingent Obligations)), including the failure by Administrative Agent or any Secured Party to provide copies of any notice delivered to any Borrower or any Guarantor in accordance with the terms of any of the Loan Documents.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Capital Park Holdings Corp.), Guaranty and Security Agreement
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Purchasers upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Collateral Agent, on behalf of itself and the Purchasers, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of the Purchase Agreement or any Secured other Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Purchasers, (ii) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Purchasers) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Secured Party;
the Purchasers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Collateral Agent, on behalf of itself and the Purchasers may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Collateral Agent, on behalf of itself and the Purchasers to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Purchasers against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Sources: Guaranty (Eastside Distilling, Inc.), Guaranty (BitNile Metaverse, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Guaranteed Parties upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between Borrower and Guarantors, on the one hand, and the Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor hereby waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or Guarantor with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives any defense of a surety performance without regard to (a) the validity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following Facility Agreement and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Documentother Loan Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Guaranteed Parties, (iib) any defense, set-off or counterclaim (other than a defense of actual payment or performanceand performance of all Obligations) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofGuaranteed Parties, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such any Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor Guarantors under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
instance (b) other than a defense of actual payment and performance of the Obligations). When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any GuarantorGuarantors, any Secured Party the Guaranteed Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee other guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Guaranteed Parties to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any other Person or to realize upon any such collateral security or guarantee other guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee other guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Guaranteed Parties against any Guarantor. For The obligations of the purposes hereof “demand” Guarantors are principal and independent obligations from the obligations of the parties to the Facility Agreement and the other Loan Documents or any other agreement. The Guarantors shall include not, in order to delay or to avoid the commencement unconditional and continuance immediate performance of its obligations under this Guaranty, invoke any defense or exception relating to or resulting from any current or future relationships (including legal proceedingsrelationships) nor any contentious or non-contentious claims, between Borrower and the Guaranteed Parties or any other third party, or any other challenge of Borrower or of a third party (other than a defense of actual payment and performance of the Obligations).
Appears in 2 contracts
Sources: Facility Agreement (AAC Holdings, Inc.), Guaranty (AAC Holdings, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the any Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the any Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the any Borrower or any other Guarantor, or any changes in the shareholders of the a Borrower or any other a Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any GrantorObligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorObligor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the any Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the any Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(ix) any change in the time, manner or place of payment of, or in any other term of all or any of the Obligations; or
(ixx) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the any Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the such Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the BorrowerBorrowers, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Sources: Second Lien Guaranty and Collateral Agreement (Hornbeck Offshore Services Inc /La), First Lien Guaranty and Collateral Agreement (Hornbeck Offshore Services Inc /La)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives, to the maximum extent permitted by applicable law, any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Collateral Agent or any other Secured Creditor upon the guaranty contained in this Article II isor acceptance of the guaranty contained in this Article II; each of the Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article II; and all dealings between the Borrower and any of the other Credit Parties, on the one hand, and the Collateral Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II. Each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower or any of the other Credit Parties with respect to any of the Obligations. Each Guarantor understands and agrees, to the extent permitted by law, that the guaranty contained in this Article II shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Collateral Agent or any other Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or such Guarantor against the Collateral Agent or any other Person against Secured Creditor, (c) any Secured Party;
change in the time, place, manner or place of payment or any amendment, waiver or increase in any of the Obligations in accordance with the terms of the documentation evidencing the same, (iiid) any exchange, taking, or release of Collateral, (e) any change in the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution structure or lack existence of power any of the Borrower or any other Guarantor of its Subsidiaries (except in connection with any release permitted by Section 7.13 hereof or any other Person at liquidation, merger or dissolution permitted by the Credit Agreement), (f) any time liable for application of Collateral to any of the payment of all or part Obligations (except to the extent the same constitutes, subject to Section 2.04, a discharge and satisfaction of the Obligations), (g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Collateral Agent or any other Secured Creditor with respect thereto, including, without limitation: (i) the application of any such law, regulation, decree or order, including any discharge prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or bar or stay against collectingrequired approval of payments on, any Obligation indebtedness in such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by such country or any part of them Governmental Authority that directly or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of indirectly deprives the Borrower or any other GuarantorCredit Party of any assets or their use, or any changes in the shareholders of the Borrower ability to operate its business or any other Guarantor;
a material part thereof, or (viv) any change in the corporate existence war (including its constitution, laws, rules, regulations whether or powernot declared), structure insurrection, revolution, hostile act, civil strife or ownership of any Grantor similar events occurring in such jurisdiction which has the same effect as the events described in clause (i), (ii) or (iii) above (in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into cases contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any time after the date of this Agreement in reliance onAgreement), or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Obligations (other than inchoate indemnity obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower or such Guarantor), which any other Credit Party) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Credit Party for the Borrower its Obligations, or of such Guarantor under the guarantee guaranty contained in this Article II, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Collateral Agent or any other Secured Party Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Collateral Agent or any other Secured Party Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Collateral Agent or any other Secured Party Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
(b) Each Guarantor hereby acknowledges and affirms that it understands that to the extent the Obligations are secured by Real Property located in the State of California, such Guarantor shall be liable for the full amount of the liability hereunder notwithstanding foreclosure on such Real Property by trustee sale or any other reason impairing such Guarantor’s or any Secured Creditors’ right to proceed against any Borrower, any other Guaranteed Party or any other guarantor of the Obligations.
(c) Each Guarantor hereby waives (to the fullest extent permitted by applicable law) all rights and benefits under Section 580a, 580b, 580d and 726 of the California Code of Civil Procedure. Each Guarantor hereby further waives (to the fullest extent permitted by applicable law), without limiting the generality of the foregoing or any other provision hereof, all rights and benefits which might otherwise be available to such Guarantor under Sections 2809, 2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433 of the California Civil Code.
(d) Until the Obligations (other than inchoate indemnity obligations) have been paid in full in cash, each Guarantor waives its rights of subrogation and reimbursement and any other rights and defenses available to such Guarantor by reason of Sections 2787 to 2855, inclusive, of the California Civil Code, including, without limitation, (1) any defenses such Guarantor may have to this Guaranty by reason of an election of remedies by the Secured Creditors and (2) any rights or defenses such Guarantor may have by reason of protection afforded to the Borrower or any Guaranteed Party pursuant to the antideficiency or other laws of California limiting or discharging such Borrower’s or such other Guaranteed Party’s indebtedness, including, without limitation, Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. In furtherance of such provisions, each Guarantor hereby waives all rights and defenses arising out of an election of remedies by the Secured Creditors, even though that election of remedies, such as a non-judicial foreclosure, destroys such Guarantor’s rights of subrogation and reimbursement against any Borrower or any other Guaranteed Party by the operation of Section 580d of the California Code of Civil Procedure or otherwise.
Appears in 2 contracts
Sources: Guaranty and Collateral Agreement (HUGHES Telematics, Inc.), Second Lien Guaranty and Collateral Agreement (HUGHES Telematics, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands Holdings waives any and agrees that all ----------------------------------- notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Lender upon this Article II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between Holdings, on the one hand, and the Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Holdings waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower and Holdings with respect to the Obligations, and without limitation of the foregoing, specifically waives the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, and Sections 49-25 and 49-26 of the Code of Virginia, each as amended from time to time, and any similar statute or law of any other jurisdiction, as the same may be amended from time to time. This Article IX shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor not of collection and Holdings hereby waives any defense defenses that it may now have or in the future may have, or are deemed to have, without regard to (a) the validity, regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Secured Party;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Agent or any Lender, (c) any discharge, modification, settlement, compromise or other Person against action in respect of any Secured Party;
(iii) Obligations or any guaranty or other liability in respect thereof, including any acceptance or refusal of any offer or performance with respect to the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution same or lack of power the subordination of the Borrower or any other Guarantor or any other Person at any time liable for same to the payment of all or part of the Obligations, including any discharge ofother obligations, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of Holdings or the Borrower or such Guarantor), which Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor Holdings under the guarantee contained in this Article IIIX, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against Holdings, the Agent and any Guarantor, any Secured Party Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Agent or any Secured Party to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral or other security, guarantee or right of offset, shall not relieve any Guarantor Holdings of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Agent or any Secured Party Lender against Holdings. This Article IX shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Holdings and its respective successors and assigns, and shall inure to the benefit of the Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Holdings under this Agreement shall have been satisfied by payment in full and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 2 contracts
Sources: Credit Agreement (Markel Holdings Inc), Credit Agreement (Markel Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Lender Indebtedness and notice of or proof of reliance by the Administrative Agent or any other Lender upon the guaranty contained in this Article 2 or acceptance of the guaranty contained in this Article 2; the Lender Indebtedness, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article 2; and all dealings between the Borrower and such Guarantor, on the one hand, and any of the Lenders, or any Secured Affiliate, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article 2. Each Guarantor waives diligence, presentment, protest, demand for payment, notice of intent to accelerate, notice of acceleration and notice of default or nonpayment to or upon the Borrower or such Guarantor with respect to the Lender Indebtedness. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, and each Guarantor hereby waives any defense payment without regard to (a) the validity or enforceability of a surety or guarantor the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Financing Document, any of the Borrower Obligations Lender Indebtedness or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured Party;
other Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Borrower, any other Guarantor, any other Obligated Party or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collectingAdministrative Agent, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other GuarantorLender, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or createdSecured Affiliate, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrower, any other Guarantor or Obligated Party or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article II2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent, any Lender, or any Secured Party Affiliate may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrowerany other Grantor, any other Guarantor or Obligated Party, or any other Person Person, or against any collateral security or guarantee guaranty for the Borrower Obligations Lender Indebtedness or any right of offset with respect thereto, and any failure by the Administrative Agent, any Lender, or any Secured Party Affiliate to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any Guarantor, any other Guarantor Obligated Party, or any other Person Person, or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any Guarantor, any other Guarantor Obligated Party, or any other Person Person, or any such collateral security, guarantee guaranty or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent, any Lender, or any Secured Party Affiliate against any such Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Aventine Renewable Energy Holdings Inc), Guaranty and Security Agreement (Aventine Renewable Energy Holdings Inc)
Guaranty Absolute and Unconditional. (a) Each The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) The Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that the Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) The Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any payment of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
Obligations without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Secured Documentthe Repurchase Agreement (or the lack of authority of Seller to execute or deliver the Repurchase Agreement), any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Secured Party against any Guarantor. For Obligations.
(f) The Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 2 contracts
Sources: Guaranty (Pennymac Financial Services, Inc.), Guaranty (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Holder upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Holder, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity or enforceability of the Debentures, and each Guarantor hereby waives any defense of a surety or guarantor the Loan Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Holder, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may may, at any time time, be available to or be asserted by the Borrower or any other Person person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofHolder, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Holder against any Guarantor. For the purposes hereof “"demand” " shall include the commencement and continuance of any legal proceedings.
Appears in 2 contracts
Sources: Subsidiary Guaranty (Digital Recorders Inc), Subsidiary Guaranty (Cover All Technologies Inc)
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Administrative Agent or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between any Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be released, discharged or otherwise affected as a result of any of the following:
altered by (ia) the invalidity invalidity, irregularity, non-perfection or unenforceability of the Credit Agreement, any Secured Documentother Credit Document or any Hedge Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured other Guaranteed Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full) which that may at any time be available to or be asserted by the a Borrower or any other Person Guarantor against the Administrative Agent or any Secured Party;
other Guaranteed Party whether in connection with the Credit Documents or any unrelated transactions, (iiic) any release, impairment, non perfection or invalidity of any direct or indirect security for any obligation of a Borrower, any other Guarantor or any other Person, (d) any change in the insolvencycorporate existence, bankruptcy arrangementstructure or ownership of a Borrower, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at or any time liable for of their respective Subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, any other Guarantor or any other Person or any of their properties or assets or any resulting release or discharge of any obligation of a Borrower, any other Guarantor or any other Person under any Credit Document, (e) any provision of applicable law or regulation purporting to prohibit the payment of all or part of the Obligations, including any discharge of, or bar or stay against collectingObligation by a Borrower, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower other Guarantor or any other GuarantorPerson, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixf) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for any of the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any Secured other Guaranteed Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured other Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until all the Obligations under the Credit Documents shall have been satisfied by payment and performance in full, the Commitments shall be terminated), notwithstanding that from time to time during the term of the Credit Agreement and any Secured Party against Hedge Agreement the Credit Parties may be free from any Obligations. A Guarantor shall automatically be released from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Company or a Restricted Subsidiary), in each case, as permitted by the Credit Agreement, (ii) the designation in accordance with the Credit Agreement of the Guarantor as an Unrestricted Subsidiary or Immaterial Subsidiary or (iii) to the extent that such Guarantor is not an Immaterial Subsidiary due to operation of the proviso to the definition of “Immaterial Subsidiary”, upon the release of the guarantee referred to in such proviso that resulted in the Guarantor not being an Immaterial Subsidiary. In addition to any release permitted by the preceding sentence, the Administrative Agent may release any Guarantor with the prior written consent of the Required Lenders; provided that any release of all or substantially all the Guarantors shall require the consent of all the Lenders. In connection with any such release, the Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsAdministrative Agent.
Appears in 2 contracts
Sources: Guaranty (Freescale Semiconductor, Ltd.), Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II Section 2 is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Secured Loan Document, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, concurso mercantil, quiebra, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the a Borrower or any other a Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any GrantorObligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorObligor;
(viii) (A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(ix) any change in the time, manner or place of payment of, or in any other term of all or any of the Obligations; or
(ixx) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 2.4 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the such Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
(c) This Agreement is a continuing guaranty and shall remain in effect until the Full Payment of all of the Guaranteed Obligations and the Commitments shall have terminated. Each Guarantor hereby irrevocably waives any right to revoke this Agreement as to future transactions giving rise to any Obligations.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Hornbeck Offshore Services Inc /La), Guaranty and Security Agreement
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Administrative Agent or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between any Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be released, discharged or otherwise affected as a result of any of the following:
altered by (ia) the invalidity invalidity, irregularity, non-perfection or unenforceability of the Credit Agreement, any Secured other Credit Document, any Letter of Credit or any Hedge Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured other Guaranteed Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full) which that may at any time be available to or be asserted by the a Borrower or any other Person Guarantor against the Administrative Agent or any Secured Party;
other Guaranteed Party whether in connection with the Credit Documents or any unrelated transactions, (iiic) any release, impairment, non perfection or invalidity of any direct or indirect security for any obligation of a Borrower, any other Guarantor or any other Person, (d) any change in the insolvencycorporate existence, bankruptcy arrangementstructure or ownership of a Borrower, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at or any time liable for of their respective Subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, any other Guarantor or any other Person or any of their properties or assets or any resulting release or discharge of any obligation of a Borrower, any other Guarantor or any other Person under any Credit Document, (e) any provision of applicable law or regulation purporting to prohibit the payment of all or part of the Obligations, including any discharge of, or bar or stay against collectingObligation by a Borrower, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower other Guarantor or any other GuarantorPerson, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixf) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for any of the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any Secured other Guaranteed Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured other Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until all the Obligations under the Credit Documents shall have been satisfied by payment and performance in full, the Commitments shall be terminated and no Letters of Credit shall be outstanding (other than any Secured Party against Letters of Credit that shall have been cash collateralized or otherwise provided for in a manner satisfactory to the Letter of Credit Issuer in respect thereof), notwithstanding that from time to time during the term of the Credit Agreement and any Hedge Agreement the Credit Parties may be free from any Obligations. A Guarantor shall automatically be released from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Company or a Restricted Subsidiary), in each case, as permitted by the Credit Agreement, (ii) the designation in accordance with the Credit Agreement of the Guarantor as an Unrestricted Subsidiary or Immaterial Subsidiary or (iii) to the extent that such Guarantor is not an Immaterial Subsidiary due to operation of the proviso to the definition of “Immaterial Subsidiary”, upon the release of the guarantee referred to in such proviso that resulted in the Guarantor not being an Immaterial Subsidiary. In addition to any release permitted by the preceding sentence, the Administrative Agent may release any Guarantor with the prior written consent of the Required Lenders; provided that any release of all or substantially all the Guarantors shall require the consent of all the Lenders. In connection with any such release, the Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsAdministrative Agent.
Appears in 2 contracts
Sources: Guaranty (Freescale Semiconductor, Ltd.), Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by Borrowers of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from the Borrowers, without regard to (a) the validity, regularity or otherwise affected as a result of any enforceability of the following:
(i) the invalidity or unenforceability of Forbearance Agreement, any Secured other Loan Document, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Secured Party;
Affiliate of Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower Borrowers against the Lender or any of its Affiliates, (c) any document presented in connection with the Forbearance Agreement, or any other Person against Loan Documents or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution respect of any statement therein being untrue or lack of power of the Borrower or inaccurate in any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Borrowers or such the Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Borrowers from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Lender or any of its Affiliates with respect thereto, and any failure by any Secured Party to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Secured Party of its Affiliates) against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Forbearance Agreement, and the other Loan Documents shall be terminated, notwithstanding that from time to time during the term of such agreement the Borrowers may be free from any legal proceedingsObligations.
Appears in 2 contracts
Sources: Guaranty (Franklin Credit Management Corp/De/), Guaranty (Franklin Credit Management Corp/De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives, to the maximum extent permitted by applicable law, any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Collateral Agent or any other Secured Creditor upon the guaranty contained in this Article II isor acceptance of the guaranty contained in this Article II; each of the Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article II; and all dealings between the Borrower and any of the other Credit Parties, on the one hand, and the Collateral Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II. Each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower or any of the other Credit Parties with respect to any of the Obligations. Each Guarantor understands and agrees, to the extent permitted by law, that the guaranty contained in this Article II shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Collateral Agent or any other Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Collateral Agent or any other Person against Secured Creditor, (c) any Secured Party;
change in the time, place, manner or place of payment or any amendment, waiver or increase in any of the Obligations in accordance with the terms of the documentation evidencing the same, (iiid) any exchange, taking, or release of Collateral, (e) any change in the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution structure or lack existence of power any of the Borrower or any other Guarantor of its Subsidiaries (except in connection with any release permitted by Section 7.13 hereof or any other Person at liquidation, merger or dissolution permitted by the Credit Agreement), (f) any time liable for the payment application of all or part Collateral to any of the Obligations, (g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Collateral Agent or any other Secured Creditor with respect thereto, including, without limitation: (i) the application of any such law, regulation, decree or order, including any discharge prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or bar or stay against collectingrequired approval of payments on, any Obligation indebtedness in such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by such country or any part of them Governmental Authority that directly or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of indirectly deprives the Borrower or any other GuarantorCredit Party of any assets or their use, or any changes in the shareholders of the Borrower ability to operate its business or any other Guarantor;
a material part thereof, or (viv) any change in the corporate existence war (including its constitution, laws, rules, regulations whether or powernot declared), structure insurrection, revolution, hostile act, civil strife or ownership of any Grantor similar events occurring in such jurisdiction which has the same effect as the events described in clause (i), (ii) or (iii) above (in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into cases contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any time after the date of this Agreement in reliance onAgreement), or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Obligations (other than inchoate indemnity obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower or such Guarantor), which any other Credit Party) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Credit Party for the Borrower its Obligations, or of such Guarantor under the guarantee guaranty contained in this Article II, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Collateral Agent or any other Secured Party Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Collateral Agent or any other Secured Party Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Collateral Agent or any other Secured Party Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
(b) Each Guarantor hereby acknowledges and affirms that it understands that to the extent the Obligations are secured by Real Property located in the State of California, such Guarantor shall be liable for the full amount of the liability hereunder notwithstanding foreclosure on such Real Property by trustee sale or any other reason impairing such Guarantor’s or any Secured Creditors’ right to proceed against any Borrower, any other Guaranteed Party or any other guarantor of the Obligations.
(c) Each Guarantor hereby waives (to the fullest extent permitted by applicable law) all rights and benefits under Section 580a, 580b, 580d and 726 of the California Code of Civil Procedure. Each Guarantor hereby further waives (to the fullest extent permitted by applicable law), without limiting the generality of the foregoing or any other provision hereof, all rights and benefits which might otherwise be available to such Guarantor under Sections 2809, 2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433 of the California Civil Code.
(d) Until the Obligations (other than inchoate indemnity obligations) have been paid in full in cash, each Guarantor waives its rights of subrogation and reimbursement and any other rights and defenses available to such Guarantor by reason of Sections 2787 to 2855, inclusive, of the California Civil Code, including, without limitation, (1) any defenses such Guarantor may have to this Guaranty by reason of an election of remedies by the Secured Creditors and (2) any rights or defenses such Guarantor may have by reason of protection afforded to the Borrower or any Guaranteed Party pursuant to the antideficiency or other laws of California limiting or discharging such Borrower’s or such other Guaranteed Party’s indebtedness, including, without limitation, Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. In furtherance of such provisions, each Guarantor hereby waives all rights and defenses arising out of an election of remedies by the Secured Creditors, even though that election of remedies, such as a nonjudicial foreclosure, destroys such Guarantor’s rights of subrogation and reimbursement against any Borrower or any other Guaranteed Party by the operation of Section 580d of the California Code of Civil Procedure or otherwise.
Appears in 2 contracts
Sources: Guaranty and Collateral Agreement (NightHawk Radiology Holdings Inc), Guaranty and Collateral Agreement (NightHawk Radiology Holdings Inc)
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this Article II isGuarantor may have against the Company, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the City or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(A) the extension or renewal of this Guaranty or the Guaranteed Agreements up to the specified Terms of each agreement;
(B) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Guaranteed Agreements except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(C) any permitted transfer or assignment of rights or obligations under the Guaranteed Agreements or under any other Transaction Agreement by any party thereto, or any permitted assignment, conveyance or other transfer of any of their respective interests in the Facility or in, to or under any of the Transaction Agreements;
(D) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City or any other person in any Transaction Agreement or in the Facility;
(E) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(F) any failure of title with respect to all or any part of the respective interests of any person in the Site or the Facility;
(G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(H) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Secured Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the Company now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Secured Partythe interests in the Company;
(iiI) any defense, set-off failure on the part of the Company for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Secured PartyGuarantor;
(iiiJ) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including City to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Company as a result condition to the enforcement of such proceedingObligations pursuant to the Guaranteed Agreements;
(ivK) subject to Section 3.4 below, any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the Company or the Guarantor under any Transaction Agreement;
(L) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(vM) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Grantor or in party to the relationship between the Borrower and any Grantor;Transaction Agreements; or
(viN) the fact that entering into any Collateral Transaction Agreement by the Company or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
matters specified in subparagraphs (A) any Secured Party’s electionthrough (N) above, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Company pursuant to the terms of the application Guaranteed Agreements, and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Guaranteed Agreements. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (BA) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; through (F) and (H) through (N) would provide a defense to, release, discharge or otherwise affect the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Company's Obligations, or of such Guarantor the Guarantor's obligations under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but Guaranty shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 2 contracts
Sources: Well Installation Agreement, Well Installation Agreement
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each The Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of any of the following:
(ia) the invalidity or unenforceability of any Secured Document, any of the Borrower Issuer’ obligations under the Note or any other agreement or instrument relating thereto, or any other guaranty of the Obligations or any other collateral security therefor or guarantee or right part of offset with respect thereto at any time or from time to time held by any Secured Partythem;
(iib) the absence of any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available attempt to or be asserted by collect the Borrower Obligations or any part of them from the Issuer or other Person against any Secured Partyaction to enforce the same;
(iiic) the disallowance in any bankruptcy, insolvency, bankruptcy arrangement, reorganization, adjustmentarrangement, compositionreadjustment of debt, liquidation, disability, liquidation or dissolution proceeding (“Bankruptcy Proceeding”) of all or lack of power any portion of the Borrower Holder’s claim (or claims) for payment of the Obligations;
(d) any other Bankruptcy Proceeding commenced by or against the Issuer, the Guarantor or any other Person at any time liable for the payment of all or part of the Obligationstheir respective subsidiaries, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest thereinthereon) in or as a result of any such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (Ge) failure by any Secured Party the Holder to file or enforce a claim against the Borrower Issuer or its estate in any bankruptcy Bankruptcy Proceeding;
(f) any action taken by the Holder if such action is authorized hereby or insolvency case by the Note;
(g) any change in the corporate existence, structure, or proceedingownership of the Issuer;
(h) any defense, set-off or counterclaim (other than a defense of payment) which may at any time be available to or be asserted by the Guarantor or any other person against the Holder;
(i) any requirement of law affecting any term of the Guarantor’s obligations under this Guaranty; or
(ixj) any other circumstance that might otherwise constitute a legal or act whatsoever, including any action equitable discharge or omission defense of the type described in Section 2.04 (with a surety or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor guarantor or any other Person or against obligor on any collateral security or guarantee for obligations, other than the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release payment in full of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Seadrill Partners LLC), Guaranty (Seadrill Partners LLC)
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Administrative Agent or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between any Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be released, discharged or otherwise affected as a result of any of the following:
altered by (ia) the invalidity invalidity, irregularity, non-perfection or unenforceability of the Credit Agreement, any Secured Documentother Credit Document or any Hedge Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured other Guaranteed Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full) which that may at any time be available to or be asserted by the a Borrower or any other Person Guarantor against the Administrative Agent or any Secured Party;
other Guaranteed Party whether in connection with the Credit Documents or any unrelated transactions, (iiic) any release, impairment, non perfection or invalidity of any direct or indirect security for any obligation of a Borrower, any other Guarantor or any other Person, (d) any change in the insolvencycorporate existence, bankruptcy arrangementstructure or ownership of a Borrower, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at or any time liable for of their respective Subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, any other Guarantor or any other Person or any of their properties or assets or any resulting release or discharge of any obligation of a Borrower, any other Guarantor or any other Person under any Credit Document, (e) any provision of applicable law or regulation purporting to prohibit the payment of all or part of the Obligations, including any discharge of, or bar or stay against collectingObligation by a Borrower, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower other Guarantor or any other GuarantorPerson, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixf) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for any of the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any Secured other Guaranteed Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured other Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until all the Obligations under the Credit Documents shall have been satisfied by payment and performance in full, the Commitments shall be terminated), notwithstanding that from time to time during the term of the Credit Agreement and any Secured Party against Hedge Agreement the Credit Parties may be free from any Obligations. A Guarantor shall automatically be released from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Company or a Restricted Subsidiary), in each case, as permitted by the Credit Agreement, (ii) the designation in accordance with the Credit Agreement of the Guarantor as an Unrestricted Subsidiary or (iii) to the extent that such Guarantor is not an Immaterial Subsidiary due to operation of clause (a) of the definition of “Immaterial Subsidiary”, upon the release of the guarantee referred to in such clause. In addition to any release permitted by the preceding sentence, the Administrative Agent may release any Guarantor with the prior written consent of the Required Lenders; provided that any release of all or substantially all the Guarantors shall require the consent of all the Lenders. In connection with any such release, the Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsAdministrative Agent.
Appears in 2 contracts
Sources: Guaranty (Freescale Semiconductor, Ltd.), Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations Indebtedness or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsIndebtedness, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor Obligor or in the relationship between the Borrower and any GrantorObligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations Indebtedness shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being 834851 recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the ObligationsIndebtedness;
(vii) the absence of any attempt to collect the Obligations Indebtedness or any part of them from any GrantorObligor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the ObligationsIndebtedness; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower ObligationsIndebtedness, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations Indebtedness or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or proof of reliance by any Secured Party upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Borrower Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between Borrower and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or any of the Guarantors with respect to the Borrower Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives any defense performance (and not of a surety collection) without regard to (a) the validity or guarantor enforceability of the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance hereunder) which that may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty and Collateral Agreement (Regal Entertainment Group)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set‑offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity or unenforceability of any Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability discharge, disaffirmance, settlement or value of compromise (by any Person, including any trustee in bankruptcy or other similar official) of the Collateral for Obligations or of the Obligations;
Facility Documents, (viiii) the absence of any attempt to collect the Obligations from the Seller or any part of them from any Grantor;
guarantor or other Person, (A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (Ciii) the disallowance, under Section 502 of the Bankruptcy Code, of all waiver or consent by Buyer or any portion other Person with respect to any provision of any Secured Party’s claim (instrument or claims) for repayment agreement evidencing the Obligations, any delay or lack of diligence in the enforcement of the Obligations; , or any failure to institute proceedings, file a claim, give any required notices or otherwise protect the Obligations, (Div) any use of cash collateral under Section 363 change of the Bankruptcy Code; time, manner or place of payment or performance or any other term of any of the Obligations, (Ev) any agreement law, regulation or stipulation as order of any jurisdiction affecting any term of any of the Obligations or rights of Buyer with respect thereto, (vi) the failure by Buyer to take any steps to perfect and maintain perfected its interest in any security or collateral related to the provision of adequate protection in any bankruptcy proceeding; Obligations, (Fvii) the avoidance commencement of any Lien in favor of the Secured Parties bankruptcy, insolvency or similar proceeding with respect to Seller or any affiliate of them for Seller, (viii) any reason; full or (G) failure by partial release of, compromise or settlement with, or agreement not to ▇▇▇, Seller or any Secured Party to file guarantor or enforce a claim against the Borrower or its estate other Person liable in respect of any bankruptcy or insolvency case or proceeding; or
Obligations, (ix) any release, surrender, cancellation or other circumstance or act whatsoever, including discharge of any action or omission evidence of the type described Obligations or the acceptance of any instrument in Section 2.04 renewal or substitution thereof, (with x) any collection, sale, or without notice to disposition of, or knowledge any other enforcement of or realization on, any Mortgage Loan or Purchased Asset, (xi) any assignment, pledge or other transfer of the Borrower Obligations or such Guarantor)any evidence thereof, which constitutes(xii) any acceptance of collateral security, guarantors, accommodation parties or might be construed to constitute, an equitable sureties for any or legal discharge of the Borrower for the Borrower all Obligations, or (xiii) any legal or equitable discharge or defense of such the Guarantor. The Guarantor under the guarantee contained in this Article IIwaives any and all defenses and discharges available to a surety, in bankruptcy guarantor or in any other instanceaccommodation co-obligor.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to realize the extent of its terms upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunderand the successors and assigns thereof, and shall not impair or affect inure to the rights benefit of the Buyer, and remediesits successors, whether expressindorsees, implied or available as a matter transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Obligations.
(f) Guarantor waives, to the fullest extent permitted by applicable law, all defenses of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Transferee OP Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Transferee or the Transferee OP Guarantor and any Beneficiary shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Transferee OP Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Transferee or the Transferee OP Guarantor with respect to the Obligations. The Transferee OP Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance (and not merely of collectibility) without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect enforceability of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Relevant Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Beneficiary, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person Transferee against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBeneficiary, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Transferee or such the Transferee OP Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Transferee for the Borrower Obligations, or of such the Transferee OP Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Transferee OP Guarantor, any Secured Party Beneficiary may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Transferee or any other Person person or entity or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, Beneficiary to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Transferee or any such other Person person or entity or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Transferee or any such other Person person or entity or any such collateral security, guarantee or right of offset, shall not relieve any the Transferee 0P Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Beneficiary against any the Transferee OP Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Transferee OP Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Beneficiaries, and continuance their respective successors, endorsees, transferees and assigns, until all of the Obligations and the obligations of the Transferee OP Guarantor under this Agreement shall have been PARTICIPATION AGREEMENT [N620SW] A-3 67 satisfied by payment and performance in full. The Transferee OP Guarantor further agrees that, without limiting the generality of this Guaranty, if any legal proceedingsBeneficiary (or any assignee thereof) shall be prevented by applicable law from exercising its remedies (or any of them) against the Transferee under any Operative Document, such Beneficiary (or any assignee thereof) shall be entitled to receive hereunder from the Transferee OP Guarantor, upon demand therefor, the sums that would have otherwise been due from the Transferee had such remedies been able to be exercised.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors waive any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Lender upon this Article II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between the Guarantors, on the one hand, and the Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. The Guarantors waive diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Guarantors and the Borrower with respect to the Obligations, and without limitation of the foregoing, specifically waive the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, as amended from time to time, and any similar statute or law of any other jurisdiction, as the same may be amended from time to time. This Article IX shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and not of collection and the Guarantors hereby waive any defenses that they may now have or in the future may have, and each Guarantor hereby waives any defense or are deemed to have, without regard to (a) the validity, regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral Collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Secured Party;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Agent or any Lender, (c) any discharge, modification, settlement, compromise or other Person against action in respect of any Secured Party;
(iii) Obligations or any guaranty or other liability in respect thereof, including any acceptance or refusal of any offer or performance with respect to the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution same or lack of power the subordination of the Borrower or any other Guarantor or any other Person at any time liable for same to the payment of all or part of the Obligations, including any discharge ofother obligations, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Guarantors or such Guarantor), which the Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor the Guarantors under the guarantee contained in this Article IIIX, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against the Guarantors, the Agent and any Guarantor, any Secured Party Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Agent or any Secured Party to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrower or any such other Person or of any such collateral Collateral or other security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Agent or any Secured Party Lender against the Guarantors. This Article IX shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and their respective successors and assigns, and shall inure to the benefit of the Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this Agreement shall have been satisfied by payment in full and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrower may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Sources: Credit Agreement (Pxre Group LTD)
Guaranty Absolute and Unconditional. (a) Each Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Holder upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the Guaranty contained in this Section 2; and all dealings between the Company and the Guarantor, on the one hand, and the Holder, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Guarantor hereby waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or the Guarantor with respect to the Obligations. Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guaranty of payment, payment and each Guarantor hereby waives any defense of a surety performance without regard to (a) the validity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of Exchange Agreement, the following:
(i) the invalidity or unenforceability of any Secured DocumentExchange Note, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Holder, (iib) any defense, set-off or counterclaim (other than a defense of actual payment or performanceand performance of all Obligations) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofHolder, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor Company or any other Person or against any collateral security or guarantee other guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Company or any other Person or to realize upon any such collateral security or guarantee other guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Company or any other Person or any such collateral security, guarantee other guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Holder against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty (Ants Software Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands Matria waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Lender upon this Article II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between Matria and the other Borrowers, on the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Matria waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Matria and the other Borrowers with respect to the Obligations, and without limitation of the foregoing, specifically waives the benefits of O.C.G.A. Section 10-7-24. This ARTICLE XI shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral Collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured Party;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for Borrowers against the Obligations;
(vii) the absence of any attempt to collect the Obligations Administrative Agent or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possessionLender, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Matria or such Guarantor), which any other Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor Matria under the guarantee contained in this Article IIARTICLE XI, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against Matria, the Administrative Agent and any Guarantor, any Secured Party Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or 95 102 any other Person or against any collateral Collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured Party to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral Collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrowers or any such other Person or of any such collateral Collateral or other security, guarantee or right of offset, shall not relieve any Guarantor Matria of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Secured Party Lender against Matria. This ARTICLE XI shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Matria and its successors and assigns, and shall inure to the benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Matria under this Agreement shall have been satisfied by payment in full, all Letters of Credit shall have expired or terminated, and the Revolving Credit Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Bank or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Bank and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and shall not be released, discharged or otherwise altered by (a) the invalidity, irregularity, non-perfection or unenforceability of each Guarantor hereby waives any defense of a surety or guarantor Facility Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Finance Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Bank or any Secured other Guaranteed Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full (other than contingent obligations that are not yet due and payable)) which that may at any time be available to or be asserted by the Borrower or any other Person Guarantor against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Bank or any other Guarantor or any other Person at any time liable for Guaranteed Party in connection with the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation Finance Documents (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence (including its constitution, laws, rules, regulations or power)existence, structure or ownership of the Borrower, any Grantor Guarantor or in any other person or any of their respective Subsidiaries, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the relationship between the Borrower and Borrower, any Grantor;
(vi) the fact that Guarantor or any Collateral other person or Lien contemplated any of their properties or intended to be given, created assets or granted as security for the repayment any resulting release or discharge of any obligation of the Obligations shall not be properly perfected Borrower, any Guarantor or created, or shall prove to be unenforceable or subordinate to any other Lienperson under any Finance Document, it being recognized and agreed by each (d) any provision of applicable law or regulation purporting to prohibit the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value payment of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien Obligation by the Borrower, as debtor-in-possessionany Guarantor or any other person, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixe) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for any of the Borrower Obligations, or of such a Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
instance (b) other than a release of any person that is no longer required to be a Guarantor pursuant to the Finance Documents). When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Bank and any Secured other Guaranteed Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Bank or any Secured other Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Borrower or any such collateral security, other person or any such guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Bank and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Bank and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until the Maturity Date. A Guarantor shall automatically be released and discharged from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Borrower or a Restricted Subsidiary), in each case, as not prohibited by the Facility Agreements, (ii) the designation in accordance with the Facility Agreements of the Guarantor as an Unrestricted Subsidiary or Immaterial Subsidiary or (iii) the occurrence of any Secured Party against event or transaction under clause 14.4(e) of each Facility Agreement. In addition to any release permitted by the preceding sentence, the Bank may release any Guarantor in its sole discretion in accordance with the Facility Agreements. In connection with any such release, the Bank shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsBank.
Appears in 1 contract
Sources: Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other the Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor Obligor or in the relationship between the Borrower and any GrantorObligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorObligor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall demand”shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Transferee OP Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Transferee or the Transferee OP Guarantor and any Beneficiary shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Transferee OP Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Transferee or the Transferee OP Guarantor with respect to the Obligations. The Transferee OP Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance (and not merely of collectibility) without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect enforceability of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Relevant Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Beneficiary, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person Transferee against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBeneficiary, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Transferee or such the Transferee OP Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Transferee for the Borrower Obligations, or of such the Transferee OP Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Transferee OP Guarantor, any Secured Party Beneficiary may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Transferee or any other Person person or entity or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, Beneficiary to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Transferee or any such other Person person or entity or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Transferee or any such other Person person or entity or any such collateral security, guarantee or right of offset, shall not relieve any the Transferee 0P Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Beneficiary against any the Transferee OP Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Transferee OP Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Beneficiaries, and continuance of any legal proceedings.their respective
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Document, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations, including any discharge of, or bar or stay against collecting, any Guaranteed Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Guaranteed Obligations;
(vii) the absence of any attempt to collect the Guaranteed Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Guaranteed Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Guaranteed Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instanceinstance (other than a defense of payment or performance).
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty and Collateral Agreement (Rex Energy Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Administrative Agent upon this Guaranty or acceptance of this Guaranty, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller Parties and Guarantor, on the one hand, and Administrative Agent on behalf of Buyers, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller Parties or Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Administrative Agent exhaust any right, power or remedy or take any action against any Seller Party or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Secured Documentthe Repurchase Agreement, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Administrative Agent, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower any Seller Party against Administrative Agent or any other Person against any Secured Party;
Buyers, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller Parties or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller Parties from the Borrower Guaranteed Obligations, or of such Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Administrative Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller Parties or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect theretothereto (without duplication of recovery), and any failure by any Secured Party Administrative Agent to make any such demand, to LEGAL02/44829386v5 pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller Parties or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller Parties or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Administrative Agent on behalf of Buyers against Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of Administrative Agent, Buyers, and their respective successors, endorsees, transferees and assigns, until all of the Guaranteed Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller Parties may be free from any Secured Party against any Guarantor. For Guaranteed Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Sources: Guaranty (loanDepot, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon this Article II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between any Borrower or the Guarantor, on the one hand, and the Lender, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Secured Documentthe Loan Agreement, the other Facility Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower it or any other Person Borrower against any Secured Party;
the Lender, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the any Borrower or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Lender may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Lender, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Loan Agreement Borrowers may be free from any Secured Party Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Lender as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Lender any claim or defense based upon, an election of remedies by the Lender which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against any GuarantorBorrower or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against any Borrower, against any other guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of each Borrower and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include financial condition of each Borrower, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Lender for such information and will not rely upon the Lender for any such information. Absent a written request for such information by the Guarantor to the Lender, Guarantor hereby waives its right, if any, to require the Lender to disclose to Guarantor any information which the Lender may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Loan Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Lender, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Borrowers or any other guarantor to the Lender, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty Agreement (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice or proof of reliance by Satellite upon this Guaranty or acceptance of this Guaranty; each Obligation shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Company and/or the Guarantor, on the one hand, and Satellite, on the other hand, shall be conclusively presumed to have been consummated in reliance upon this Guaranty. The Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guaranty of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of any Secured Document(1) the Purchase Agreement, the Note or any of the Borrower Obligations other Transaction Documents or any document, instrument or agreement made, delivered or given in connection with the Purchase Agreement, the Note or any other Transaction Document, (2) any Lien securing the Obligations, (3) any of the collateral security therefor for, or guarantee any Guaranty of, the Obligations, or (4) any right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Obligations, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to to, or be asserted by by, the Borrower Company against Satellite, or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance whatsoever (including, without limitation, insolvency or act whatsoever, including any action or omission bankruptcy of the type described in Section 2.04 Company or any other Person) that constitutes (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, ) an equitable or legal discharge of the Borrower for Obligations or the Borrower Obligations, or obligations and liabilities of such the Guarantor under this Guaranty, regardless of whether the guarantee contained in this Article II, in bankruptcy Guarantor has notice or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right knowledge of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingscircumstance.
Appears in 1 contract
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by the Depositor or the Trust, as a result of:
(a) Each Guarantor understands and agrees that the guarantee contained in this Article II isany extension, and shall be construed asrenewal, a continuingsettlement, completedcompromise, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety waiver or guarantor or any other obligor on any obligations arising in connection with or release in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Document, any of the Borrower Obligations Guaranteed Obligation or any other collateral security therefor related document in connection with the transactions contemplated hereby or guarantee thereby, whether by operation of law or right of offset with respect thereto at any time or from time to time held by any Secured Partyotherwise;
(iib) any defensemodification or amendment of or supplement to this Agreement, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Indenture or any other Person against any Secured Partyrelated documents;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence (including its constitution, laws, rules, regulations or power)existence, structure or ownership of the Depositor, or any Grantor insolvency, bankruptcy, reorganization or in other similar proceeding affecting the relationship between the Borrower Depositor, or its assets and properties or any Grantorresulting release or discharge of any Guaranteed Obligation;
(vid) the fact that existence of any Collateral claim, set-off, defense or Lien contemplated other right which the Guarantor may have at any time against the Depositor or intended to be given, created the Initial Purchaser or granted as security for the repayment of the Obligations shall not be properly perfected or createdits affiliates, or shall prove to be unenforceable or subordinate to any other LienPerson, it being recognized and agreed by each of whether in connection herewith or any unrelated transactions; provided, however, that nothing herein shall prevent the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value assertion of any of the Collateral for the Obligationssuch claim, set-off, defense or other right by separate suit or compulsory counterclaim;
(viie) any invalidity or unenforceability relating to or against the absence Depositor for any reason of this Agreement, the Indenture or any related documents, or any provision of applicable law purporting to prohibit the performance of any attempt to collect the Obligations or any part of them from any GrantorGuaranteed Obligation;
(Af) any Secured Party’s election, in other act or omission to act or delay of any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien kind by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceedingDepositor; or
(ixg) any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the Guarantor's obligations hereunder. The guarantee contained provided in this Article IIXIII shall encompass any modification or amendment of, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation supplement to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against this Agreement, the Borrower, any other Guarantor Indenture or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsrelated documents.
Appears in 1 contract
Sources: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Administrative Agent or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between any Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and each Guarantor hereby waives any defense shall not be released, discharged or otherwise altered by (a) the invalidity, irregularity, non-perfection or unenforceability of a surety or guarantor the Credit Agreement or any other obligor on Credit Document, any obligations arising in connection with or in respect Letter of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentCredit, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured other Guaranteed Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full (other than contingent obligations that are not yet due and payable)) which that may at any time be available to or be asserted by the a Borrower or any other Person Guarantor against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Administrative Agent or any other Guarantor or any other Person at any time liable for Guaranteed Party in connection with the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation Credit Documents (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence (including its constitution, laws, rules, regulations or power)existence, structure or ownership of a Borrower, any Grantor Guarantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Person or any of them for their respective Subsidiaries, or any reason; insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, any Guarantor or any other Person or any of their properties or assets or any resulting release or discharge of any obligation of a Borrower, any Guarantor or any other Person under any Credit Document, (d) any provision of applicable law or regulation purporting to prohibit the payment of any Obligation by a Borrower, any Guarantor or any other Person, or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixe) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for any of the Borrower Obligations, or of such a Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
instance (b) other than a release of any Person that is no longer required to be a Guarantor pursuant to the Credit Documents). When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any Secured other Guaranteed Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured other Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until the Termination Date. A Guarantor shall automatically be released and discharged from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Company or a Restricted Subsidiary), in each case, as not prohibited by the Credit Agreement, (ii) the designation in accordance with the Credit Agreement of the Guarantor as an Unrestricted Subsidiary or Immaterial Subsidiary or (iii) the occurrence of any Secured Party against event or transaction under Section 9.9(e) of the Credit Agreement. In addition to any release permitted by the preceding sentence, the Administrative Agent may release any Guarantor with the prior written consent of the Required Lenders. In connection with any such release, the Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsAdministrative Agent.
Appears in 1 contract
Sources: Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Administrative Agent or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between any Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and each Guarantor hereby waives any defense shall not be released, discharged or otherwise altered by (a) the invalidity, irregularity, non-perfection or unenforceability of a surety or guarantor the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured other Guaranteed Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full (other than contingent obligations that are not yet due and payable)) which that may at any time be available to or be asserted by the a Borrower or any other Person Guarantor against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Administrative Agent or any other Guarantor or any other Person at any time liable for Guaranteed Party in connection with the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation Credit Documents (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence (including its constitution, laws, rules, regulations or power)existence, structure or ownership of a Borrower, any Grantor Guarantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Person or any of them for their respective Subsidiaries, or any reason; insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, any Guarantor or any other Person or any of their properties or assets or any resulting release or discharge of any obligation of a Borrower, any Guarantor or any other Person under any Credit Document, (d) any provision of applicable law or regulation purporting to prohibit the payment of any Obligation by a Borrower, any Guarantor or any other Person, or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixe) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for any of the Borrower Obligations, or of such a Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
instance (b) other than a release of any Person that is no longer required to be a Guarantor pursuant to the Credit Documents). When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any Secured other Guaranteed Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured other Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until all the Obligations under the Credit Documents shall have been satisfied by payment and performance in full (other than contingent obligations that are not yet due and payable) and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Credit Parties may be free from any Secured Party against Obligations. A Guarantor shall automatically be released from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Company or a Restricted Subsidiary), in each case, as not prohibited by the Credit Agreement, (ii) the designation in accordance with the Credit Agreement of the Guarantor as an Unrestricted Subsidiary or Immaterial Subsidiary or (iii) to the extent that such Guarantor is not an Immaterial Subsidiary due to operation of the proviso to the definition of “Immaterial Subsidiary”, upon the release of the guarantee referred to in such proviso that resulted in the Guarantor not being an Immaterial Subsidiary. In addition to any release permitted by the preceding sentence, the Administrative Agent may release any Guarantor with the prior written consent of the Required Lenders; provided that any release of all or substantially all the Guarantors shall require the consent of all the Lenders. In connection with any such release, the Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsAdministrative Agent.
Appears in 1 contract
Sources: Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller or Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind, except for such notices that the Buyer has expressly agreed to deliver under this Guaranty or any other Program Document.
(c) Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Secured Documentthe Repurchase Agreement, any of the Borrower Obligations, Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the Guaranteed Obligations shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Secured Party against Obligations.
(f) Guarantor waives, to the fullest extent permitted by applicable law, all defenses of surety to which it may be entitled by statute or otherwise.
(g) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any Guarantor. For manner relying upon the purposes hereof “demand” shall include the commencement and continuance validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon this Article II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty; and all dealings between Borrower or the Guarantor, on the one hand, and the Lender, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or the Guaranty with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Secured Documentthe Loan Agreement, the other Facility Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by it or Borrower against the Borrower Lender, or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Lender may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and its successors and assigns thereof, and shall inure to the benefit of the Lender, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Loan Agreement Borrower may be free from any Secured Party Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Lender as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Lender any claim or defense based upon, an election of remedies by the Lender which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against Borrower or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against Borrower, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of Borrower and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include financial condition of Borrower, of all other circumstances which bear upon the commencement risk of nonpayment and continuance that it will continue to rely upon sources other than the Lender for such information and will not rely upon the Lender for any such information. Absent a written request for such information by the Guarantor to the Lender, Guarantor hereby waives its right, if any, to require the Lender to disclose to Guarantor any information which the Lender may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Loan Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Lender, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by Borrower or any other guarantor to the Lender, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty Agreement (PennyMac Mortgage Investment Trust)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Lender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
performance without regard to (i) the invalidity validity or unenforceability enforceability of any Secured Documenteach Note, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Lender, (ii) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Lender) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Secured Party;
the Lender, or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Lender to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Lender against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty (Ault Alliance, Inc.)
Guaranty Absolute and Unconditional. (a) Each The obligations of the Guarantor understands and agrees that the guarantee contained in under this Article II isVI shall remain in full force and effect without regard to, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged affected or otherwise affected as a result of impaired by any of the following, any of which may be taken without the consent of, or notice to, the Guarantor:
(ia) any exercise or non-exercise by any Credit Party of any right or privilege under the Loan Documents;
(b) any extension (including without limitation extensions of time for payment), renewal, amendment, restructuring or restatement of, or any acceptance of late or partial payments under, or increase in the principal amount of Debt under, or other modification of terms under, the Loan Documents;
(c) any bankruptcy, insolvency, reorganization, dissolution, liquidation or similar proceeding relating to AGR or any Affiliate of AGR;
(d) the existence of any facts or circumstances that cause (or result in) any of the representations or warranties of any Loan Party under the Loan Documents to be inaccurate;
(e) any merger, consolidation, restructuring or termination of the corporate existence of AGR or the Guarantor; or
(f) the illegality, invalidity or unenforceability of any Secured Documentof all or any part of the Guaranteed Obligations. This Article VI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Borrower Guaranteed Obligations is rescinded or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held must otherwise be returned by any Secured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Credit Party or any other Person against any Secured Party;
(iii) upon the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power reorganization of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, AGR or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitutionotherwise, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted all as security for the repayment of the Obligations shall though such payment had not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instancebeen made.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this Article II isGuarantor may have against the Company, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the City or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(A) the extension or renewal of this Guaranty or the Phase III Site Lease up to the specified Term;
(B) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Phase III Site Lease except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(C) any permitted transfer or assignment of rights or obligations under the Phase III Site Lease or under any other Transaction Agreement by any party thereto, or any permitted assignment, conveyance or other transfer of any of their respective interests in the Phase III Cogeneration Facility or in, to or under any of the Transaction Agreements;
(D) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City or any other person in any Transaction Agreement or in the Phase III Cogeneration Facility;
(E) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(F) any failure of title with respect to all or any part of the respective interests of any person in the Phase III Cogeneration Facility Site or the Phase III Cogeneration Facility;
(G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(H) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Secured Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the Company now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Secured Partythe interests in the Company;
(iiI) any defense, set-off failure on the part of the Company for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Secured PartyGuarantor;
(iiiJ) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including City to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Company as a result condition to the enforcement of such proceedingObligations pursuant to the Phase III Site Lease;
(ivK) subject to Section 3.4 below, any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the Company or the Guarantor under any Transaction Agreement;
(L) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(vM) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Grantor or in party to the relationship between the Borrower and any Grantor;Transaction Agreements; or
(viN) the fact that entering into any Collateral Transaction Agreement by the Company or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
matters specified in subparagraphs (A) any Secured Party’s electionthrough (N) above, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Company pursuant to the terms of the application Phase III Site Lease and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Phase III Site Lease. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (BA) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; through (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or and (GH) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.through
Appears in 1 contract
Sources: Well Installation Agreement
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives, to the maximum extent permitted by applicable law, any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Collateral Agent or any other Secured Creditor upon the guaranty contained in this Article II isor acceptance of the guaranty contained in this Article II; each of the Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article II; and all dealings between the Borrower and any of the other Credit Parties, on the one hand, and the Collateral Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II. Each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower or any of the other Credit Parties with respect to any of the Obligations. Each Guarantor understands and agrees, to the extent permitted by law, that the guaranty contained in this Article II shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of this Agreement, the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentDebt Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Collateral Agent or any other Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by any Borrower against the Collateral Agent or any other Secured Creditor, (c) any change in the time, place, manner or place of payment or any amendment, waiver or increase in any of the Obligations in accordance with the terms of the documentation evidencing the same, (d) any exchange, taking, or release of Collateral, (e) any change in the structure or existence of any of the Borrower or any of the other Credit Parties (except in connection with any release permitted by Section 7.13 hereof or any other liquidation, merger or dissolution permitted by the Credit Agreement), (f) any application of Collateral to any of the Obligations, (g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Collateral Agent or any other Secured Creditor with respect thereto, including, without limitation: (i) the application of any such law, regulation, decree or order, including any prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by such country or any Governmental Authority that directly or indirectly deprives the Borrower or any other Person against Credit Party of any Secured Party;
(iii) the insolvencyassets or their use, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower ability to operate its business or any other Guarantor or any other Person at any time liable for the payment of all or a material part of the Obligations, including any discharge ofthereof, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease war (whether or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or powernot declared), structure insurrection, revolution, hostile act, civil strife or ownership of any Grantor similar events occurring in such jurisdiction which has the same effect as the events described in clause (i), (ii) or (iii) above (in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into cases contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any time after the date of this Agreement in reliance onAgreement), or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Obligations (other than inchoate indemnity obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower or such Guarantor), which any other Credit Party) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Credit Party for the Borrower its Obligations, or of such Guarantor under the guarantee guaranty contained in this Article II, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Collateral Agent or any other Secured Party Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Collateral Agent or any other Secured Party Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Collateral Agent or any other Secured Party Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty and Collateral Agreement (WESTMORELAND COAL Co)
Guaranty Absolute and Unconditional. Except as set forth in Section 3.4 hereof, the obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Subsidiaries shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this Article II isGuarantor may have against the Subsidiaries, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the Authority or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(1) the extension or renewal of this Guaranty or the Agreements in accordance with the terms of each agreement;
(2) any exercise or failure, omission or delay by the Authority in the exercise of any right, power or remedy conferred on the Authority with respect to this Guaranty or the Agreements except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(3) any permitted transfer or assignment of rights or obligations under the Agreements or under any other Transaction Agreement by any party thereto or any permitted assignment, conveyance or other transfer of any of their respective interests in the GENCO Generating Facilities or the T&D System or in, to or under any of the Transaction Agreements;
(4) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the Authority or any other person in any Transaction Agreement or in the GENCO Generating Facilities or the T&D System;
(5) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(6) any failure of title with respect to all or any part of the respective interests of any person in the GENCO Generating Facilities or the T&D System;
(7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Subsidiaries or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(8) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Secured Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the Subsidiaries now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Secured Partythe interests in the Subsidiaries;
(ii9) any defense, set-off failure on the part of the Subsidiaries for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Secured PartyGuarantor;
(iii10) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including Authority to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Subsidiaries as a result condition to the enforcement of such proceedingObligations pursuant to the Agreements;
(iv11) any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the Subsidiaries or the Guarantor under any Transaction Agreement;
(12) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(v13) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Grantor or in party to the relationship between the Borrower and any Grantor;Transaction Agreements; or
(vi14) the fact that entering into any Collateral Transaction Agreement by the Subsidiaries or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
matters specified in subparagraphs (vii1) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
through (A14) any Secured Party’s electionabove, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Subsidiaries pursuant to the terms of the application of Section 1111(b)(2) Agreements and not merely a guarantor and shall be paid by the Guarantor forthwith. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Subsidiaries' rights, benefits, duties or obligations under the Agreements. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (B1) any borrowing through (6) and (8) through (14) would provide a defense to, release, discharge or grant of a Lien by otherwise affect the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Subsidiaries' Obligations, or of such Guarantor the Guarantor's obligations under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but Guaranty shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Holders upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Holders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives, to the fullest extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment of the Obligations without regard to (a) the validity or enforceability of the Exchange Agreement, and each Guarantor hereby waives any defense of a surety or guarantor the Notes or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Holders, (iib) any defense, set-off or counterclaim (other than a defense of payment or performanceand performance in full of the Obligations) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofHolders, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Holders may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Holders to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Holders against any Guarantor. For the purposes hereof hereof, “demand” shall include without limitation the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other the Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor Obligor or in the relationship between the Borrower and any GrantorObligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorObligor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Administrative Agent upon this Guaranty or acceptance of this Guaranty, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Loan Parties and Guarantor, on the one hand, and Administrative Agent, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set‑offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Loan Parties or Guarantor, surrender or other handling or disposition of assets subject to the Loan Agreement, any requirement that Administrative Agent exhaust any right, power or remedy or take any action against any Loan Party or against any assets subject to the Loan Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Secured Documentthe Loan Agreement, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Administrative Agent, (ii) any defense, set-off set‑off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower any Loan Party against Administrative Agent or any other Person against any Secured Party;
Lender, (iii) the filing of claims with any court in case of the insolvency, reorganization or bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution of any Loan Party; or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Loan Parties or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Loan Parties from the Borrower Guaranteed Obligations, or of such Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Administrative Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Loan Parties or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, Administrative Agent to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Loan Parties or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Loan Parties or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Administrative Agent against Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of Administrative Agent, Lenders, and their respective successors, endorsees, transferees and assigns, until (i) all of the Guaranteed Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, and (ii) the Loan Agreement shall be terminated, notwithstanding that from time to time prior thereto the Loan Parties may be free from any Secured Party against any Guarantor. For Guaranteed Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Sources: Limited Guaranty (Fortress Credit Realty Income Trust)
Guaranty Absolute and Unconditional. (a) Each U.S. Subsidiary Guarantor understands waives, to the maximum extent permitted by applicable law, any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Collateral Agent or any other Secured Creditor upon the guaranty contained in this Article II isor acceptance of the guaranty contained in this Article II; each of the Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article II; and all dealings between the Borrower and any of the other Credit Parties, on the one hand, and the Collateral Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II. Each U.S. Subsidiary Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower or any of the other Credit Parties with respect to any of the Obligations. Each U.S. Subsidiary Guarantor understands and agrees, to the extent permitted by law, that the guaranty contained in this Article II shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each U.S. Subsidiary Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of this Agreement, the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentDebt Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Collateral Agent or any other Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Collateral Agent or any other Person against Secured Creditor, (c) any Secured Party;
change in the time, place, manner or place of payment or any amendment, waiver or increase in any of the Obligations in accordance with the terms of the documentation evidencing the same, (iiid) any exchange, taking, or release of Collateral, (e) any change in the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution structure or lack existence of power any of the Borrower or any of the other Guarantor Credit Parties (except in connection with any release permitted by Section 7.13 hereof or any other Person at liquidation, merger or dissolution permitted by the Credit Agreement), (f) any time liable for the payment application of all or part Collateral to any of the Obligations, (g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Collateral Agent or any other Secured Creditor with respect thereto, including, without limitation: (i) the application of any such law, regulation, decree or order, including any discharge prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or bar or stay against collectingrequired approval of payments on, any Obligation indebtedness in such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by such country or any part of them Governmental Authority that directly or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of indirectly deprives the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership Credit Party of any Grantor assets or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligationstheir use, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy ability to operate its business or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offsetmaterial part thereof, or (iv) any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.war
Appears in 1 contract
Sources: u.s. Guaranty and Collateral Agreement (API Technologies Corp.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the any Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the any Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the any Borrower or any other Guarantor, or any changes in the shareholders of the any Borrower or the Guarantor; provided that upon any other Guarantor;such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement.
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any GrantorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorGuarantor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the BorrowerBorrowers, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the any Borrower or its any Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower Borrowers or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Subject to Section 8, the obligations of each Guarantor under this Guaranty shall be unconditional and absolute, and without limiting the foregoing, each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Administrative Agent or any other Guaranteed Party upon this Guaranty or acceptance of this Guaranty, the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guaranty; and all dealings between any Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the other Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance, to the maximum extent permitted by applicable law, and each Guarantor hereby waives any defense shall not be released, discharged or otherwise altered by (a) the invalidity, irregularity, non-perfection or unenforceability of a surety or guarantor the Credit Agreement or any other obligor on Credit Document, any obligations arising in connection with or in respect Letter of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentCredit, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured other Guaranteed Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performancethat the Obligations have been paid and performed in full (other than contingent obligations that are not yet due and payable)) which that may at any time be available to or be asserted by the a Borrower or any other Person Guarantor against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Administrative Agent or any other Guarantor or any other Person at any time liable for Guaranteed Party in connection with the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation Credit Documents (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence (including its constitution, laws, rules, regulations or power)existence, structure or ownership of a Borrower, any Grantor Guarantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Person or any of them for their respective Subsidiaries, or any reason; insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, any Guarantor or any other Person or any of their properties or assets or any resulting release or discharge of any obligation of a Borrower, any Guarantor or any other Person under any Credit Document, (d) any provision of applicable law or regulation purporting to prohibit the payment of any Obligation by a Borrower, any Guarantor or any other Person, or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixe) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for any of the Borrower Obligations, or of such a Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
instance (b) other than a release of any Person that is no longer required to be a Guarantor pursuant to the Credit Documents). When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any Secured other Guaranteed Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured other Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the other Guaranteed Parties against such Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the other Guaranteed Parties, and their respective successors, indorsees, transferees and assigns, until all the Obligations under the Credit Documents shall have been satisfied by payment and performance in full (other than contingent obligations that are not yet due and payable) and the Commitments shall be terminated and no Letters of Credit shall be outstanding (except to the extent backstopped or cash collateralized to the reasonable satisfaction of the applicable Issuing Bank), notwithstanding that from time to time during the term of the Credit Agreement the Credit Parties may be free from any Secured Party against Obligations. A Guarantor shall automatically be released and discharged from its obligations hereunder upon (i) a sale or other disposition (including by way of consolidation or merger) of such Guarantor or the sale or disposition of all or substantially all the assets of such Guarantor (other than, in either case, to the Company or a Restricted Subsidiary), in each case, as not prohibited by the Credit Agreement, (ii) the designation in accordance with the Credit Agreement of the Guarantor as an Unrestricted Subsidiary or Immaterial Subsidiary,(iii) to the extent that such Guarantor is not an Immaterial Subsidiary due to operation of the proviso to the definition of “Immaterial Subsidiary”, upon the release of the guarantee referred to in such proviso that resulted in the Guarantor not being an Immaterial Subsidiary or (iv) the occurrence of any event or transaction under Section 9.9(e) of the Credit Agreement. In addition to any release permitted by the preceding sentence, the Administrative Agent may release any Guarantor with the prior written consent of the Required Lenders.. In connection with any such release, the Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination or release. For Any execution and delivery of documents pursuant to the purposes hereof “demand” preceding sentence of this Section 7 shall include be without recourse to or warranty by the commencement and continuance of any legal proceedingsAdministrative Agent.
Appears in 1 contract
Sources: Guaranty (NXP Semiconductors N.V.)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings among any Seller and the Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon any Seller or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement (in each case, except to the extent required under the Program Documents), any requirement that Buyer exhaust any right, power or remedy or take any action against any Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity, regularity or unenforceability enforceability of any Secured Documentthe Repurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against the Borrower Buyer, or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of any Seller or the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of a Seller from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor a Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor a Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof (to the extent permitted under the Repurchase Agreement), and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto a Seller may be free from any Secured Party against any Guarantor. For Obligations.
(f) Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each a. Guarantor hereby waives guarantees to Buyer the payment in full when due by each Seller (whether at the stated maturity, by acceleration or otherwise) of the Obligations after giving effect to any defense applicable notice or grace period.
b. The Guarantor agrees to promptly pay all reasonable out-of-pocket expenses (including the reasonable fees and expenses of a surety counsel) incurred in the enforcement or guarantor protection of the rights of Buyer or any other obligor on any obligations arising in the collection of payments hereunder in connection with or a failure by any Seller to pay the Obligations or, to the extent incurred after demand under the Guaranty has been made and not timely honored, in respect connection with a breach of any of this Guaranty by the following and Guarantor.
c. Guarantor hereby agrees that its obligations hereunder shall not be discharged absolute, continuing and unconditional, irrespective of (i) the validity, regularity or otherwise affected enforceability of the Agreement (other than as a result of any the termination of this Agreement upon payment in full of the following:
(i) Obligations and a written notice of termination has been delivered by the invalidity or unenforceability Buyer, which written notice shall be promptly delivered by Buyer upon such payment in full, including by means of any Secured Documentset-off to the extent set-off is permitted under the Agreement), any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
(ii) the absence of any defenseaction to enforce the same, set-off any waiver or counterclaim (other than a defense of payment or performance) which may at consent by Buyer concerning any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
provisions thereof, (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack rendering of power of the Borrower any judgment against any Seller or any other Guarantor or any other Person at any time liable for action to enforce the payment of all or part of the Obligationssame, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any salethe existence, lease validity, enforceability, perfection or transfer extent of any or all of the assets of the Borrower collateral therefore or any other Guarantorrelease of such collateral, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitutiontime, lawsmanner or place of payment of, rules, regulations or power), structure or ownership of any Grantor or in any other term of, the relationship between Agreement or any transaction or confirmation thereunder, any other amendment or waiver of, or any consent to departure from, any of the Borrower and terms of the Agreement or any Grantor;
transaction or confirmation thereunder, including any increase or decrease in any amount payable thereunder or the rate at which any interest or amount shall accrue thereunder, (vi) the fact that any Collateral release or Lien contemplated amendment or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or createdwaiver of, or shall prove consent to be unenforceable or subordinate to departure from, any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance onguaranty or support document, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance that might otherwise constitute a legal or act whatsoeverequitable discharge of a guarantor or a defense of a guarantor (other than the defense of the statute of limitations or as a result of the termination of this Agreement and payment in full of the Obligations, including by means of set-off to the extent set-off is permitted under the Agreement). For the avoidance of doubt, the parties agree that (i) any action amendment or omission waiver with respect to the Agreement that affects the Obligations under this Guaranty shall modify the Obligations under this guaranty accordingly, and (ii) the Obligations under this Guaranty may be satisfied by means of set-off to the extent set-off is permitted under the Agreement, and that the Guarantor may also exercise any right that any Seller may exercise under the Agreement to cure any default in respect of its obligations under the Agreement and may interpose any defense which any Seller is or would have been entitled to interpose (other than any defense arising by reason of any disability, lack of capacity, bankruptcy or insolvency of any Seller or as otherwise provided for herein); provided, however, that the Guarantor’s obligations hereunder may not be reduced by set-off against any other amounts as may payable by the Buyer to the Guarantor arising under other contracts or obligations existing between the Guarantor and the Buyer (if any).
d. In case of the type described in Section 2.04 (with or without notice failure of any Seller to or knowledge of punctually pay the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or the Guarantor hereby agrees upon written demand by the Buyer to cause any such payment to be made pursuant to the terms of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) Guaranty. When making any demand hereunder against Guarantor, or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor an Seller or any other Person person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor an Seller or any such other Person person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Buyer against Guarantor.
e. This Guaranty, which is a guaranty of payment and not of collection only, shall remain in full force and effect until thirty days after the date Buyer terminates this Guaranty upon written notice. It is understood and agreed, however, that notwithstanding any Secured Party against such termination this Guaranty shall continue in full force and effect with respect to all Obligations arising prior to such termination, including for greater certainty, Obligations arising from transactions entered into prior to the termination of this Guaranty. Guarantor further agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored or returned due to bankruptcy or insolvency laws or otherwise. This Guaranty shall continue to be effective if any Seller changes its name, merges or consolidates with or into another entity, loses its separate legal proceedingsentity or ceases to exist.
f. This Guaranty shall inure to the benefit of Buyer, and its successors, endorsees, transferees and assigns until all the Obligations and the obligations of Guarantor under this Guaranty shall have been discharged, terminated or satisfied by payment in full, notwithstanding that, from time to time, an Seller may be free from any Obligations.
g. Guarantor waives acceptance of this Guaranty, diligence, set-off promptness, presentment, protest, notice of protest, acceleration and dishonor, filing of claims with a court in the event of insolvency or bankruptcy of any Seller, and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Buyer upon this Guaranty.
Appears in 1 contract
Sources: Guaranty (Angel Oak Mortgage, Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other a Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any GrantorObligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorObligor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty and Collateral Agreement (Hornbeck Offshore Services Inc /La)
Guaranty Absolute and Unconditional. (a) Each VFN Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of all Guaranty Obligations and Guaranty Expenses and not of their collectability only and is in no way conditioned upon any requirement that any Buyer Party first attempt to collect any of the Guaranty Obligations or Guaranty Expenses from Seller, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentProgram Agreement, any of the Borrower Guaranty Obligations or any other collateral security Guaranty Expenses therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Buyer Party;
, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against any Buyer Party, (c) the Borrower lack of authority of Seller to execute or deliver the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (d) any change in the time, manner or place of payment of, or in any other Person against any Secured Party;
term of, or amendment to the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (iiie) the absence of any action to enforce the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, to recover any judgment against Seller or to enforce a judgment against Seller under the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (f) the occurrence of any Event of Default under the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (g) the existence of bankruptcy, insolvency, bankruptcy arrangementreorganization or similar proceedings involving Seller, (h) any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, collateral securing the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (i) any change in the laws, rules or regulations of any jurisdiction, (j) any present or future action of any Governmental Authority or court amending, varying, reducing or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the obligations of Seller under the Series 2▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement or of VFN Guarantor under this Guaranty, (k) the reorganization, adjustment, composition, liquidation, disability, dissolution merger or lack consolidation of power of the Borrower Seller into or with any other corporation or entity, (1) if any payment made by Seller to any Buyer Party is held to constitute a preference under bankruptcy laws, or for any reason any Buyer Party is required to refund such payment or pay such amount to Seller, VFN Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixm) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such VFN Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such VFN Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any VFN Guarantor, any Secured Party the Buyer Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust (i) such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or (ii) any right of offset with respect thereto, and any failure by any Secured Buyer Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any VFN Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Secured Buyer Party against any VFN Guarantor. For This Guaranty shall be binding in accordance with and to the purposes hereof “demand” extent of its terms upon VFN Guarantor and its successors and assigns, and shall include inure to the commencement benefit of the Buyer Parties, and continuance of any legal proceedingstheir successors, indorsees, transferees and assigns.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands executing this ----------------------------------- Agreement waives, to the fullest extent permitted by applicable law, any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by Lender upon the guaranty contained in this Article II isSection 7 or acceptance of the guaranty contained in this Section 7; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Section 7; and all dealings between Borrower or any Guarantor, on the one hand, and Lender, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Section 7. Each Guarantor executing this Agreement waives, to the fullest extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or any Guarantor with respect to the Obligations. This Section 7 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor this Agreement, the Revolving Credit Note or any other obligor on Loan Document entered into by any obligations arising in connection Credit Party with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentLender, any of the Borrower Obligations or any other security interest in and Lien upon the any collateral security therefor or guarantee therefor or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Credit Party against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; Lender or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), any Credit Party) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower any Credit Party for the Borrower Obligations, or of such any Guarantor under the guarantee contained in this Article IISection 7, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Credit Party or any other Person or against any security interest in and Lien upon the any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Credit Party or any such other Person or to realize upon any such security interest in and Lien upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Credit Party or any such other Person or of any such security interest in and Lien upon such collateral security, guarantee security or any such guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Lender against any Guarantor. For This Section 7 shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon each Guarantor and each of its successors, and shall include inure to the commencement and continuance benefit of any legal proceedingsLender until the Termination Date.
Appears in 1 contract
Sources: Loan and Security Agreement (Pharmaceutical Resources Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by any Buyer Party upon this Article II isGuaranty or acceptance of this Guaranty; the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between Seller or Guarantor, on the one hand, and each Buyer Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor irrevocably waives diligence, presentment, protest, demand for payment, delinquency, protest, the benefit of any statutes of limitation, any notice not provided for herein (to the fullest extent of permitted by law), notices of any adverse change in the financial condition of Seller or of any other fact that might increase Guarantor’s risk hereunder, and notices of any Transactions, purchases, loans or other financial accommodations made or extended under the Program Agreements or the creation or existence of any Guaranteed Obligations and notice of default under any other Program Agreements or nonpayment to or upon Seller or the Guaranty with respect to the Guaranteed Obligations, as well as any requirement that any time any action be taken by any person against Seller or any other person and any right it may have to revoke this Guaranty as to future indebtedness or notice of acceptance hereof. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity genuineness, regularity, validity or unenforceability enforceability of any Secured Documentthe Series 2024-MSRVF1 Repurchase Agreement, the Series 2020-SPIADVF1 Repurchase Agreement, the other Program Agreements, any of the Borrower Guaranteed Obligations or by the existence, validity, enforceability, perfection or extent of any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Buyer Party;
, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Secured Buyer Party;
, (iii) any extension, renewal, settlement, indulgence, compromise, claim, waiver, release, surrender, of or with respect to the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (Guaranteed Obligations or any part thereof or any agreement relating thereto, whether (in any such case) by operation of them law or interest therein) in otherwise, or as a result of such proceeding;
any failure or omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, (iv) any salemodification, lease amendment or transfer restatement of any or all of supplement to the assets of the Borrower Program Agreement or any other Guarantorinstrument or document delivered in connection therewith, including, without limitation, any such amendment which may increase the amount of, or the interest rates applicable to, any of the Guaranteed Obligations guaranteed hereby, (v) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any collateral securing the Guaranteed Obligations or any part thereof in accordance with the terms of the Repurchase Agreements, or any changes in other obligation of any person or entity with respect to the shareholders of the Borrower Guaranteed Obligations or any other Guarantor;
part thereof, or any nonperfection or invalidity of any direct or indirect security for the Guaranteed Obligations, (vvi) any change in the corporate existence (including its constitutioncorporate, laws, rules, regulations partnership or power)other existence, structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or createdSeller, or shall prove to be unenforceable any insolvency, bankruptcy, reorganization or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance onsimilar proceeding affecting Seller, or in contemplation any of the benefits of, the validity, enforceability, collectability their respective assets or value any resulting release or discharge of any obligation of the Collateral for the Obligations;
Seller, (vii) the absence existence of any attempt to collect the Obligations setoff, claim, counterclaim, recoupment, termination or other rights that Guarantor may have at any time against Seller or any part other person, whether in connection herewith or in connection with any unrelated transactions; provided that nothing herein shall prevent the assertion of them from any Grantor;
such claim by separate suit or compulsory counterclaim, (Aviii) the election by, or on behalf of any Secured Buyer Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; , (Bix) any borrowing or grant of a Lien security interest by the BorrowerSeller, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; , (Cx) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims of any Secured Party’s claim (or claims) Buyer Party for repayment of the Obligations; (D) all or any use of cash collateral under Section 363 part of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; Guaranteed Obligations, or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixxi) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Guaranteed Obligations, or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Buyer Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it that they may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Buyer Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Buyer Party against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon Guarantor and their successors and assigns thereof, and shall include inure to the commencement benefit of Buyer Parties, and continuance their respective successors, indorsees, transferees and assigns, until all the Obligations and the Guaranteed Obligations of Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Series 2024-MSRVF1 Repurchase Agreement or the Series 2020-SPIADVFl Repurchase Agreement Seller may be free from any Obligations. No Buyer Party makes any representation or warranty in respect to any such circumstances or (except as set forth in the Repurchase Agreements) has any duty or responsibility whatsoever to Guarantor in respect to the management and maintenance of the Guaranteed Obligations or any collateral that may secure the Guaranteed Obligations.
(b) Notwithstanding anything herein to the contrary, to the extent permitted by applicable law, Guarantor hereby absolutely, unconditionally, knowingly, and expressly waives:
(i) its right, if any, to require any Buyer Party to institute suit against, or to exhaust any rights and remedies which any Buyer Party has or may have against any third party, or against any collateral provided by any third party. In this regard, G▇▇▇▇▇▇▇▇ agrees that it is bound to the payment of each and all Guaranteed Obligations, whether now existing or hereafter arising, as fully as if the Guaranteed Obligations were directly owing to any Buyer Party by Guarantor. Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of Guarantor in respect thereof; and
(i) any rights to assert against any Buyer Party any defense (legal proceedingsor equitable), set-off, counterclaim, or claim which Guarantor may now or at any time hereafter have against any other party liable to any Buyer Party; (ii) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations or any security therefor (other than payment and performance); (iii) any defense Guarantor has to performance hereunder, and any right Guarantor has to be exonerated, arising by reason of the alteration by any Buyer Party of the Guaranteed Obligations or the acceptance by any Buyer Party of anything in partial satisfaction of the Guaranteed Obligations; and (iv) the benefit of any statute of limitations affecting Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to Guarantor’s liability hereunder.
(c) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to each Buyer Party as follows:
(i) Guarantor hereby waives any defense arising by reason of, and any and all right to assert against any Buyer Party (i) any claim or defense based upon, an election of remedies such as nonjudicial foreclosure by any Buyer Party which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s (x) subrogation rights, (y) rights to proceed against Seller or any other guarantor for reimbursement or contribution, and/or (z) any other rights of Guarantor to proceed against Seller, against any other guarantor, or against any other person or security or (ii) any election by any Buyer Party under Section 1111(b) of the Bankruptcy Code, as now and hereafter in effect (or any successor statute), to limit the amount of, or any collateral securing, its claim against Guarantor.. The obligations of the Guarantor hereunder shall not be affected by (i) the failure of any Buyer Party to assert any claim or demand or to enforce any right or remedy against Seller under the provisions of the Program Agreements or any other agreement or otherwise; (ii) any extension or renewal of any provision hereof or thereof; (iii) any rescission, waiver, compromise, acceleration, amendment or modification of any of the terms or provisions of the Program Agreements or of any other agreement; (iv) the release, exchange, waiver or foreclosure of any security held by any Buyer Party for the Guaranteed Obligations or (v) the failure of any Buyer Party to exercise any right or remedy against any other guarantor of the Guaranteed Obligations.
(ii) Guarantor is presently informed of the financial condition of Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of Seller’s financial condition, the status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and that it will continue to rely upon sources other than any Buyer Party for such information and will not rely upon any Buyer Party for any such information. Guarantor hereby waives its right, if any, to require any Buyer Party to disclose to Guarantor any information which any Buyer Party may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor. In the event any Buyer Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to Guarantor, no Buyer Party shall be under any obligation (i) to undertake any investigation not a part of its regular business routine, (ii) to disclose any information which any Buyer Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information to Guarantor.
(iii) Guarantor has independently reviewed the Series 2024-MSRVF1 Repurchase Agreement, the Series 2020-SPIADVF1 Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to Buyer Parties, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any Liens or security interests of any kind or nature granted by Seller or any other guarantor to any Buyer Party, now or at any time and from time to time in the future.
(iv) Guarantor represents and warrants that it is organized and resident in the United States of America.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The obligations of Guarantor understands hereunder are absolute, irrevocable and agrees that unconditional and shall remain in full force and effect until the guarantee contained Obligations have been fully discharged in this Article II isaccordance with their respective terms, and shall not be construed assubject to any counterclaim, a continuingset-off, completeddeduction or defense (other than full and strict compliance with, absolute and unconditional guarantee of paymentor release, and each Guarantor hereby waives any defense of a surety discharge or guarantor satisfaction of, the Obligations or any other obligor defense that PCL may have) based on any claim that Guarantor may have against PCL, any Beneficiary, or any other person. Without limiting the foregoing, the obligations arising of Guarantor hereunder shall not be released, discharged or in connection any way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of Guarantor):
3.3.1 a non-material default by a Beneficiary under any agreement to which Guarantor or PCL is a party or in which Guarantor or PCL has any interest;
3.3.2 any exercise or failure, omission or delay by Beneficiaries (or any of them) in any exercise of any right, power or remedy conferred on Beneficiaries by the MOU, this Guaranty or the Design-Build Agreement provided, however, that this provision shall not affect any applicable statute of limitations defense available to Guarantor;
3.3.3 any transfer or assignment of rights, obligations or interests under the MOU or the Design-Build Agreement by any party thereto that is permitted under such agreement, other than as permitted by section XXII.A. of the MOU or Sections 4.1 and 4.4 of this Guaranty.
3.3.4 any permitted assignment for the purpose of creating a security interest in or mortgage against all or any part of the respective interests of a Beneficiary, or any other person in the Design-Build Agreement;
3.3.5 any renewal, extension, amendment, change or modification in respect of any of the following and hereby agrees Obligations or other terms or conditions of the MOU, Design-Build Agreement or this Guaranty that its obligations hereunder shall not be discharged is otherwise permitted by any such agreement;
3.3.6 the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets of PCL or Guarantor; any marshaling of the assets or liabilities of PCL or Guarantor; any receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against PCL or Guarantor, or any of the property of either of them; or any allegation or contest of the validity or enforceability of the MOU, this Guaranty or the Design-Build Agreement in any such proceeding or otherwise affected (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect as if any such proceeding had not been instituted and as if no rejection, stay, termination, assumption or modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that Guarantor shall and does hereby waive all rights and benefits which might accrue to it, as against any Beneficiary’s rights hereunder, by reason of any such proceeding);
3.3.7 except as expressly permitted by Sections 4.1 and 4.4 of this Guaranty, any sale or other transfer by Guarantor or any of its affiliates of any of their respective interests in PCL now or hereafter owned, directly or indirectly, or any change in the following:ownership of PCL;
(i) 3.3.8 any failure on the invalidity part of PCL for any reason to perform or unenforceability comply with any agreement with Guarantor;
3.3.9 the failure on the part of Beneficiaries to provide any notice to Guarantor or PCL, except to the extent that such failure would provide PCL with a defense against any claim by any Beneficiary;
3.3.10 any failure of any Secured Documentparty to the Design-Build Agreement to mitigate damages resulting from any default by PCL or Guarantor under the Design-Build Agreement or by Guarantor hereunder, except to the extent that such failure would provide PCL with a defense against any claim by any Beneficiary;
3.3.11 the merger or consolidation of any party to the Borrower Obligations Design-Build Agreement into or with any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofperson, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value property of any of the Collateral foregoing to any other person, so long as no Beneficiary disposes of assets necessary for its performance under the ObligationsMOU or the Design-Build Agreement;
(vii) the absence 3.3.12 any legal disability or incapacity of any attempt party to collect the Obligations MOU or any part of them from any GrantorDesign-Build Agreement;
(A) any Secured Party’s election3.3.13 a finding by a court of competent jurisdiction that entering into the MOU or Design-Build Agreement by PCL or Guarantor was invalid, not properly authorized, or in any proceeding instituted under chapter 11 excess of the Bankruptcy Code, powers of such party;
3.3.14 the termination of the application Design-Build Agreement by PCL pursuant to the terms thereof, except to the extent any such termination would relieve PCL of Section 1111(b)(2) liability under such agreement.
3.3.15 the obtaining by Beneficiaries of the Bankruptcy Code; (B) any borrowing guaranty or grant of a Lien by the Borrower, as debtor-in-possession, other credit support or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion security of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceedingperson other than Guarantor; or
(ix) 3.3.16 any performance by Guarantor from time to time hereunder, unless and until all the Obligations have been paid and performed in full in accordance with their terms. Should any money due or owing under this Guaranty not be recoverable from Guarantor due to any of the matters specified in subsections 3.3.1 through 3.3.17, above, or for any other circumstance or act whatsoeverreason, including then in any action or omission such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from Guarantor as though Guarantor were the principal obligor in place of PCL pursuant to the terms of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights Design-Build Agreement and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make not merely a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunderguarantor, and shall not impair be paid by Guarantor forthwith. Notwithstanding anything to the contrary expressed herein, nothing herein shall be deemed to amend, modify, clarify, expand or affect reduce PCL’s rights, benefits, duties or obligations under the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsDesign- Build Agreement.
Appears in 1 contract
Sources: Guaranty Agreement
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of all Guaranty Obligations and Guaranty Expenses and not of their collectability only and is in no way conditioned upon any requirement that any Buyer Party first attempt to collect any of the Guaranty Obligations or Guaranty Expenses from any Seller, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Series 2024-VF1 Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentProgram Agreement, any of the Borrower Guaranty Obligations or any other collateral security Guaranty Expenses therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Buyer Party;
, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Seller against any Buyer Party, (c) the Borrower lack of authority of any Seller to execute or deliver the Series 2024-VF1 Repurchase Agreement, (d) any change in the time, manner or place of payment of, or in any other Person term of, or amendment to the Series 2024-VF1 Repurchase Agreement, (e) the absence of any action to enforce the Series 2024-VF1 Repurchase Agreement, to recover any judgment against any Secured Party;
Seller or to enforce a judgment against any Seller under the Series 2024-VF1 Repurchase Agreement, (iiif) the occurrence of any Event of Default under the Series 2024-VF1 Repurchase Agreement, (g) the existence of bankruptcy, insolvency, bankruptcy arrangementreorganization or similar proceedings involving any Seller, (h) any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, collateral securing the Series 2024-VF1 Repurchase Agreement, (i) any change in the laws, rules or regulations of any jurisdiction, (j) any present or future action of any Governmental Authority or court amending, varying, reducing or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the obligations of any Seller under the Series 2024-VF1 Repurchase Agreement or of any Guarantor under this Guaranty, (k) the reorganization, adjustment, composition, liquidation, disability, dissolution merger or lack consolidation of power of the Borrower any Seller into or with any other corporation or entity, (1) if any payment made by any Seller to any Buyer Party is held to constitute a preference under bankruptcy laws, or for any reason any Buyer Party is required to refund such payment or pay such amount to Seller, any Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixm) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower any Seller or such any Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such any Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Buyer Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust (i) such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or (ii) any right of offset with respect thereto, and any failure by any Secured Buyer Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Secured Buyer Party against any Guarantor. For This Guaranty shall be binding in accordance with and to the purposes hereof “demand” extent of its terms upon each Guarantor and its successors and assigns, and shall include inure to the commencement benefit of the Buyer Parties, and continuance of any legal proceedingstheir successors, indorsees, transferees and assigns.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1; and all dealings between the Debtor and any of the Grantors, on the one hand, and the Collateral Agent, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section
3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Debtor or any of the Grantors with respect to the Secured Obligations. Each Grantor understands and agrees that the guarantee guaranty contained in this Article II isVI and the grant of the security interests pursuant to Section 3.1 shall be, and shall be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and performance without regard to (a) the validity or enforceability of the Purchase Money Note Guaranty, and each Guarantor hereby waives any defense of a surety or guarantor the Purchase Money Note or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Ancillary Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any the Collateral Agent, for the benefit of the Secured Party;
Parties, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Debtor or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s electionAgent, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Reimbursement and Security Agreement
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Holder upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Holder, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity or enforceability of the Debentures, and each Guarantor hereby waives any defense of a surety or guarantor the Loan Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Holder, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may may, at any time time, be available to or be asserted by the Borrower or any other Person person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofHolder, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Holder against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations Obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy bankruptcy, arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation Obligations (or any part of them thereof or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor; provided that upon any such sale, lease or transfer, such assets shall be released in accordance with Section 8.13 of the Collateral Agreement;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and or any GrantorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect on the Obligations or any part of them thereof from any GrantorGuarantor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its the Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor or any other Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person liable on the Obligations or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands The Guarantors waive any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Lender upon this Article II isGeneral Partner Guaranty or acceptance of this General Partner Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this General Partner Guaranty; and all dealings between the Borrowers (or any of them) and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this General Partner Guaranty. The Guarantors waive diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Borrower or any of the other General Partners or other guarantors with respect to the Obligations. The Guarantors understand and agree that this General Partner Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor the Credit Agreement, or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured Party;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Borrower against the Borrower Administrative Agent or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower any Borrower, any General Partner or such Guarantor), other guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the any Borrower for the Borrower Obligations, of any General Partner under its Support Document, or of such Guarantor under the guarantee contained in this Article IIany other guarantor, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against the Guarantors, the Administrative Agent and any Guarantor, any Secured Party Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor General Partner, any other guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured Party to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the any such Borrower, any other Guarantor General Partner or any other guarantor or other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the any such Borrower, any other Guarantor General Partner or any other guarantor or other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor the Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent and the Lenders against the Guarantors. This General Partner Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the respective successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantors under this General Partner Guaranty shall have been satisfied by payment in full and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement any Secured Party against Borrower may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Sources: Credit Agreement (KKR & Co. L.P.)
Guaranty Absolute and Unconditional. (a) Each VFN Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of all Guaranty Obligations and Guaranty Expenses and not of their collectability only and is in no way conditioned upon any requirement that any Buyer Party first attempt to collect any of the Guaranty Obligations or Guaranty Expenses from Seller, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentProgram Agreement, any of the Borrower Guaranty Obligations or any other collateral security Guaranty Expenses therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Buyer Party;
, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Seller against any Buyer Party, (c) the Borrower lack of authority of Seller to execute or deliver the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (d) any change in the time, manner or place of payment of, or in any other Person against any Secured Party;
term of, or amendment to the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (iiie) the absence of any action to enforce the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, to recover any judgment against Seller or to enforce a judgment against Seller under the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (f) the occurrence of any Event of Default under the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (g) the existence of bankruptcy, insolvency, bankruptcy arrangementreorganization or similar proceedings involving Seller, (h) any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, collateral securing the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement, (i) any change in the laws, rules or regulations of any jurisdiction, (j) any present or future action of any Governmental Authority or court amending, varying, reducing or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the obligations of Seller under the Series 2▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement or of VFN Guarantor under this Guaranty, (k) the reorganization, adjustment, composition, liquidation, disability, dissolution merger or lack consolidation of power of the Borrower Seller into or with any other corporation or entity, (1) if any payment made by Seller to any Buyer Party is held to constitute a preference under bankruptcy laws, or for any reason any Buyer Party is required to refund such payment or pay such amount to Seller, VFN Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixm) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such VFN Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such VFN Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any VFN Guarantor, any Secured Party the Buyer Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust (i) such rights rights, powers, privileges and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or (ii) any right of offset with respect thereto, and any failure by any Secured Buyer Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person Seller or any such collateral security, guarantee other Person or right of offset, shall not relieve any VFN Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights rights, powers, privileges and remedies, whether express, implied or available as a matter of lawlaw or equity, of any Secured Buyer Party against any VFN Guarantor. For This Guaranty shall be binding in accordance with and to the purposes hereof “demand” extent of its terms upon VFN Guarantor and its successors and assigns, and shall include inure to the commencement benefit of the Buyer Parties, and continuance of any legal proceedingstheir successors, indorsees, transferees and assigns.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Subsidiary Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Secured Creditor upon the guaranty contained in this Section 14 or acceptance of the guaranty contained in this Section 14; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 14; and all dealings between the Borrower and any of the Subsidiary Guarantors, on the one hand, with respect to the Credit Documents and the Administrative Agent and the Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 14. Each Subsidiary Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Subsidiary Guarantors with respect to the Obligations. Each Subsidiary Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 14 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, and each Guarantor hereby waives any defense payment without regard to (a) the validity or enforceability of a surety or guarantor this Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against the Administrative Agent or any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofCreditor, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance whatsoever (other than a defense of payment or act whatsoever, including any action or omission of the type described in Section 2.04 performance) (with or without notice to or knowledge of the Borrower or such Subsidiary Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Subsidiary Guarantor under the guarantee guaranty contained in this Article IISection 14, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Subsidiary Guarantor, the Administrative Agent or any Secured Party Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Subsidiary Guarantor, or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured Party Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Subsidiary Guarantor, or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Subsidiary Guarantor, or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Subsidiary Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Secured Party Creditor against any Subsidiary Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by MLMCI upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller, any other guarantor and the Guarantor, on the one hand, and MLMCI, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) The Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or any other guarantor or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that MLMCI exhaust any right, power or remedy or take any action against the Seller or any other guarantor or against any assets subject to the Repurchase Agreement and other formalities of any kind.
(c) The Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentRepurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
MLMCI, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller or any other Person guarantor against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofMLMCI, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such any other guarantor or the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller or any other guarantor from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party MLMCI may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, MLMCI to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of MLMCI against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of MLMCI, and its successors, indorsees, transferees and assigns, until all the Obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement, shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Secured Party against any Guarantor. For Obligations.
(f) The Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations Indebtedness or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy bankruptcy, arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsIndebtedness, including any discharge of, or bar or stay against collecting, any Obligation Indebtedness (or any part of them thereof or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor; provided that upon any such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and or any GrantorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations Indebtedness shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the ObligationsIndebtedness;
(vii) the absence of any attempt to collect the Obligations Indebtedness or any part of them thereof from any GrantorGuarantor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the ObligationsIndebtedness; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its the Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower ObligationsIndebtedness, or of such Guarantor or any other Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person liable on the Indebtedness or against any collateral security or guarantee for the Borrower Obligations Indebtedness or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A1) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (Ba) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (Cb) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (Dc) any use of cash collateral under Section 363 of the Bankruptcy Code; (Ed) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (Fe) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (Gf) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty and Collateral Agreement (Rex Energy Corp)
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Operator shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in SECTION 3.05 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this Article II isGuarantor may have against the Operator, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the RECEIVER/TRUSTEE or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor):
(1) the extension or renewal of this Guaranty or the Agreement up to the specified Terms of each agreement;
(2) any exercise or failure, omission or delay by the RECEIVER/TRUSTEE in the exercise of any right, power or remedy conferred on the RECEIVER/TRUSTEE with respect to this Guaranty or the Agreement except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(3) any permitted transfer or assignment of rights or obligations under the Agreement by any party thereto (other than a permitted assignment to a replacement operator in the event of a termination of the Operator pursuant to ARTICLE XIII of the Agreement), or any permitted assignment, conveyance or other transfer of any of their respective interests in the ORDOT FACILITY;
(4) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the RECEIVER/TRUSTEE or any other person in the ORDOT FACILITY;
(5) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of the Agreement;
(6) any failure of title with respect to all or any part of the respective interests of any person in the ORDOT FACILITY;
(7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Operator or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty or the Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(8) except as permitted by SECTION 4.01 or 4.02 hereof, any sale or other transfer by the Guarantor or any affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Secured Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor affiliate in the Operator now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Secured Partythe interests in the Operator;
(ii9) any defense, set-off failure on the part of the Operator for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Secured PartyGuarantor;
(iii10) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including RECEIVER/TRUSTEE to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Operator as a result condition to the enforcement of such proceedingObligations pursuant to the Agreement;
(iv11) the merger or consolidation of any party to the Agreement into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(v12) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Grantor or in party to the relationship between the Borrower and any Grantor;Agreement; or
(vi13) the fact that any Collateral entering into the Agreement by the Operator or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
matters specified in subparagraphs (vii1) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
through (A13) any Secured Party’s electionabove, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, Operator pursuant to the terms of the application Agreement and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Operator’s rights, benefits, duties or obligations under the Agreement. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (B1) any borrowing through (6) and (8) through (13) would provide defense to, release, discharge or grant of a Lien by otherwise affect the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyOperator’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor the Guarantor’s obligations under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but Guaranty shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 1 contract
Sources: Agreement to Operate
Guaranty Absolute and Unconditional. (a) Each Guarantor understands Matria waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Lender upon this Article II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between Matria and the other Borrowers, on the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Matria waives diligence, 106 114 presentment, protest, demand for payment and notice of default or nonpayment to or upon Matria and the other Borrowers with respect to the Obligations, and without limitation of the foregoing, specifically waives the benefits of O.C.G.A. Section 10-7-24. This ARTICLE XI shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral Collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured Party;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for Borrowers against the Obligations;
(vii) the absence of any attempt to collect the Obligations Administrative Agent or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possessionLender, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Matria or such Guarantor), which any other Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor Matria under the guarantee contained in this Article IIARTICLE XI, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against Matria, the Administrative Agent and any Guarantor, any Secured Party Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral Collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured Party to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral Collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrowers or any such other Person or of any such collateral Collateral or other security, guarantee or right of offset, shall not relieve any Guarantor Matria of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Secured Party Lender against Matria. This ARTICLE XI shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Matria and its successors and assigns, and shall inure to the benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of Matria under this Agreement shall have been satisfied by payment in full, all Letters of Credit shall have expired or terminated, and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the DBOM Contractor shall have fully discharged the Obligations in accordance with their respective terms and conditions, and, except as provided in Section 3.4, shall not be subject to any counterclaim, set-off, deduction or defense (aother than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) Each Guarantor understands and agrees based on any claim that the guarantee contained in this Article II isGuarantor may have against the DBOM Contractor, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor the BWS or any other obligor on person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any obligations arising in connection way modified by reason of any of the following (whether with or without notice to, knowledge by, or further consent, of the Guarantor):
(1) the extension or renewal of this Guaranty Agreement or the Service Agreement up to the specified Terms of each agreement; Board of Water Supply, City and County of Honolulu Kalaeloa Seawater Desalination Facility Design-Build-Operate-Maintain Project Guaranty AgreementArticle III - Guaranty Covenants
(2) any exercise or failure, omission or delay by the BWS in the exercise of any right, power or remedy conferred on the BWS with respect to this Guaranty Agreement or the Service Agreement except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim;
(3) any permitted transfer or assignment of rights or obligations under the Service Agreement or under any other Transaction Agreement by any party thereto, or any permitted assignment, conveyance or other transfer of any of their respective interests in the Project or in, to or under any of the Transaction Agreements;
(4) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the BWS or any other person in any Transaction Agreement or in the Project;
(5) any renewal, amendment, change or modification in respect of any of the following Obligations or terms or conditions of any Transaction Agreement;
(6) any failure of title with respect to all or any part of the respective interests of any person in the Project Site or the Project;
(7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and hereby agrees that its obligations hereunder liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the DBOM Contractor or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty Agreement or any other Transaction Agreement in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty Agreement shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not be discharged been instituted and as if no rejection, stay, termination, assumption or otherwise affected modification has occurred as a result thereof, it being the intent and purpose of this Guaranty Agreement that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding);
(8) except as permitted by Section 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the following:
(i) the invalidity capital stock or unenforceability of any Secured Document, any other interest of the Borrower Obligations Guarantor or any other collateral security therefor Affiliate in the DBOM Contractor now or guarantee hereafter owned, directly or right indirectly, by the Guarantor or any Affiliate, or any change in composition of offset with respect thereto at any time or from time to time held by any Secured Partythe interests in the DBOM Contractor;
(ii9) any defense, set-off failure on the part of the DBOM Contractor for any reason to perform or counterclaim (other than a defense of payment or performance) which may at comply with any time be available to or be asserted by agreement with the Borrower or any other Person against any Secured PartyGuarantor;
(iii10) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of failure on the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including BWS to provide any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty Agreement and to the DBOM Contractor as a result condition to the enforcement of such proceedingObligations pursuant to the Service Agreement;
(iv11) any failure of any party to the Transaction Agreements to mitigate damages resulting from any default by the DBOM Contractor or the Guarantor under any Transaction Agreement; Board of Water Supply, City and County of Honolulu Kalaeloa Seawater Desalination Facility Design-Build-Operate-Maintain Project Guaranty AgreementArticle III - Guaranty Covenants
(12) the merger or consolidation of any party to the Transaction Agreements into or with any other person, or any sale, lease lease, transfer, abandonment or transfer other disposition of any or all of the assets property of any of the Borrower or foregoing to any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantorperson;
(v13) any change in the corporate existence (including its constitution, laws, rules, regulations legal disability or power), structure or ownership incapacity of any Grantor or in party to the relationship between the Borrower and any Grantor;Transaction Agreements; or
(vi14) the fact that entering into any Collateral Transaction Agreement by the DBOM Contractor or Lien contemplated the Guarantor was invalid or intended to be given, created or granted as security for the repayment in excess of the Obligations shall powers of such party. Should any money due or owing under this Guaranty Agreement not be properly perfected or created, or shall prove recoverable from the Guarantor due to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
matters specified in subparagraphs (vii1) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
through (A14) any Secured Party’s electionabove, then, in any proceeding instituted under chapter 11 such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Bankruptcy Code, DBOM Contractor pursuant to the terms of the application Service Agreement and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of Section 1111(b)(2) this Guaranty Agreement. Notwithstanding anything to the contrary expressed in this Guaranty Agreement, nothing in this Guaranty Agreement shall be deemed to amend, modify, clarify, expand or reduce the DBOM Contractor’s rights, benefits, duties or obligations under the Service Agreement. To the extent that any of the Bankruptcy Code; matters specified in subparagraphs (B1) any borrowing through (6) and (8) through (14) would provide a defense to, release, discharge or grant of a Lien by otherwise affect the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyDBOM Contractor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor the Guarantor’s obligations under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but Guaranty Agreement shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against treated the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingssame.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completedabsolute, absolute and unconditional guarantee of payment, the full and each Guarantor hereby waives punctual payment and performance by FCMC and Holding of the Obligations and not of their collectibility only and is in no way conditioned upon any defense of a surety or guarantor requirement that the Lender or any other obligor on any obligations arising in connection with or in respect of party first attempt to collect any of the following and hereby agrees that its obligations hereunder shall not be discharged Obligations from FCMC, Holding, Franklin Asset, or otherwise affected as a result any Borrower or other guarantor, without regard to (a) the validity, regularity or enforceability of any of the following:
(i) the invalidity or unenforceability of Interest Rate Hedge Agreement, any Secured Documentother Loan Document executed in connection therewith, any of the Borrower Obligations or any other collateral Collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender or any Secured Party;
Affiliate of Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the FCMC, Holding, Franklin Asset, any Borrower or any other Person guarantor against the Lender or any Secured Party;
of its Affiliates, (iiic) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower any document presented in connection with any Interest Rate Hedge Agreement or any other Guarantor Loan Documents executed in connection therewith or this Guaranty proving to be forged, fraudulent, invalid or insufficient in any other Person at respect of any time liable for the payment of all statement therein being untrue or part of the Obligations, including inaccurate in any discharge ofrespect, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixd) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of FCMC, Holding, Franklin Asset, any Borrowers, any other guarantor, or the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of FCMC and/or Holding from the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against FCMC, Holding, Franklin Asset, the Borrower, any other Guarantor Borrowers or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset of Lender or any of its Affiliates with respect thereto, and any failure by any Secured Party to make any such demand, the Lender to pursue such other rights or remedies or to collect any payments from FCMC, Holding, Franklin Asset, the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of FCMC, Holding, Franklin Asset, the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender (or any Secured Party of its Affiliates) against any Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Lender (and continuance its Affiliates) and its respective successors, endorsees, transferees and assigns, in each case until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of such agreement FCMC, Holding, Franklin Asset, any legal proceedingsBorrower or any other guarantor may be free from any Obligations.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each the Guarantor hereby waives any defense of a surety or guarantor or any other obligor Guarantor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other GuarantorBorrower, or any changes in the shareholders of the Borrower or any other GuarantorBorrower;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor the Guarantor or in the relationship between the Borrower and any Grantorthe Guarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors Guarantor that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantorthe Guarantor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such the Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this Article ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any the Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty and Pledge Agreement (Petro Resources Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor Guarantor or in the relationship between the Borrower and any GrantorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorGuarantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completedcomplete, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the following:
: (i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations Indebtedness or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Guaranteed Creditor; (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
Guaranteed Creditor; (iii) the insolvency, bankruptcy bankruptcy, arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsIndebtedness, including any discharge of, or bar or stay against collecting, any Obligation Indebtedness (or any part of them thereof or interest therein) in or as a result of such proceeding;
; (iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
; provided that upon any such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement; (v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and or any Grantor;
Guarantor; (vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations Indebtedness shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the ObligationsIndebtedness;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty Agreement
Guaranty Absolute and Unconditional. Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Secured Creditor upon this Guaranty or acceptance of this Guaranty; the Obligations (aand any of them) shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the genuineness, and each Guarantor hereby waives legality, validity, regularity or enforceability of the Credit Agreement, any defense of a surety or guarantor other Loan Document or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentSwap Contract, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower against the Administrative Agent or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; Creditor or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent and any Secured Party Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Secured Party to make any such demand, Creditor to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrower or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any such Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any the Administrative Agent and the Secured Party Creditors against any such Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon each Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Administrative Agent and continuance the Secured Creditors, and their respective successors, endorsees, transferees and assigns, until all the Obligations and the obligations of each Guarantor under this Guaranty shall have been satisfied by payment in full, the Commitments are terminated, the Letters of Credit are terminated or expired and the Acceptances are matured, notwithstanding that from time to time during the term of the Credit Agreement and any legal proceedingsSwap Contract the Borrower may be free from any Obligations.
Appears in 1 contract
Sources: Guaranty (E&s Holdings Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives, to the maximum extent permitted by applicable law, any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent or any other Secured Creditor upon the guaranty contained in this Article II isor acceptance of the guaranty contained in this Article II; each of the Secured Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Article II; and all dealings between the Borrower, any of the other Credit Parties and any other Subsidiaries of the Borrower, on the one hand, and the Collateral Agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II. Each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower, any of the other Credit Parties or any other Subsidiaries of the Borrower with respect to any of the Secured Obligations. Each Guarantor understands and agrees, to the extent permitted by law, that the guaranty contained in this Article II shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of this Agreement, the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentDebt Agreements, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Collateral Agent or any other Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person Subsidiary thereof against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Collateral Agent or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsSecured Creditor, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vc) any change in the corporate existence time, manner or place of payment or any amendment, waiver or increase in any of the Secured Obligations in accordance with the terms of the documentation evidencing the same, (including its constitutiond) any exchange, lawstaking, rulesor release of Collateral, regulations or power), (e) any change in the structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value existence of any of the Borrower, any of the other Credit Parties or any other Subsidiary of the Borrower (except in connection with any release permitted by Section 7.13 or any other liquidation, merger or dissolution permitted by the Credit Agreement), (f) any application of Collateral for to any of the Secured Obligations;
, (viig) the absence any law, regulation or order of any attempt to collect the Obligations jurisdiction, or any part other event, affecting any term of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 Obligation or the rights of the Bankruptcy CodeCollateral Agent or any other Secured Creditor with respect thereto, of including, without limitation: (i) the application of Section 1111(b)(2any such law, regulation, decree or order, including any prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the Bankruptcy Code; unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (Bii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction, (iii) any borrowing expropriation, confiscation, nationalization or grant of a Lien requisition by such country or any Governmental Authority that directly or indirectly deprives the Borrower, as debtor-in-possessionany other Credit Party or any other Subsidiary of the Borrower of any assets or their use, or extension of credit, under Section 364 of the Bankruptcy Code; ability to operate its business or a material part thereof, or (Civ) any war (whether or not declared), insurrection, revolution, hostile act, civil strife or similar events occurring in such jurisdiction which has the disallowancesame effect as the events described in clause (i), under Section 502 (ii) or (iii) above (in each of the Bankruptcy Codecases contemplated in clauses (i) through (iv) above, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision extent occurring or existing on or at any time after the date of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; this Agreement), or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Secured Obligations (other than inchoate indemnity and expense reimbursement obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower Borrower, any other Credit Party or such Guarantor), which any other Subsidiary of the Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower, any other Credit Party or any other Subsidiary of the Borrower for the Borrower its Secured Obligations, or of such Guarantor under the guarantee guaranty contained in this Article II, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Collateral Agent or any other Secured Party Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Collateral Agent or any other Secured Party Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Collateral Agent or any other Secured Party Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Credit Agreement (Semtech Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the maximum extent permitted by applicable law, any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative agent or any other Secured Creditor upon the guaranty contained in this Section 13 or acceptance of the guaranty contained in this Section 13; each of the Obligations, and any obligation contained therein, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 13; and all dealings between the Borrowers and any of the other Credit Parties, on the one hand, and the Administrative agent and the other Secured Creditors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 13. Except as expressly required under the Final DIP Order, each Guarantor waives, to the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any of the Borrower or any of the other Credit Parties with respect to any of the Obligations. Each Guarantor understands and agrees agrees, to the extent permitted by law, that the guarantee guaranty contained in this Article II is, and Section 13 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each not of collection. Each Guarantor hereby waives waives, to the maximum extent permitted by applicable law, any defense and all defenses that it may have arising out of a surety or guarantor in connection with any and all of the following: (a) the validity or enforceability of this Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by the Administrative agent or any other Secured Party;
Creditor, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by any Borrower against the Administrative agent or any other Secured Creditor, (c) any change in the time, place, manner or place of payment or any amendment, waiver or increase in any of the Obligations in accordance with the terms of the documentation evidencing the same, (d) any exchange, taking, or release of Collateral, (e) any change in the structure or existence of any of the Borrower or any of the other Credit Parties (except as provided in, or permitted by, this Agreement), (f) any application of Collateral to any of the Obligations, (g) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Administrative agent or any other Secured Creditor with respect thereto, including, without limitation: (i) the application of any such law, regulation, decree or order, including any prior approval, which would prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any Governmental Authority thereof of any moratorium on, the required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction, (iii) any expropriation, confiscation, nationalization or requisition by such country or any Governmental Authority that directly or indirectly deprives the Borrower or any other Person against Credit Party of any Secured Party;
(iii) the insolvencyassets or their use, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower ability to operate its business or any other Guarantor or any other Person at any time liable for the payment of all or a material part of the Obligations, including any discharge ofthereof, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease war (whether or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or powernot declared), structure insurrection, revolution, hostile act, civil strife or ownership of any Grantor similar events occurring in such jurisdiction which has the same effect as the events described in clause (i), (ii) or (iii) above (in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into cases contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any time after the date of this Agreement in reliance onAgreement), or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixh) any other circumstance or act whatsoever, including any action or omission whatsoever (other than payment in full in cash of the type described in Section 2.04 Obligations (other than inchoate indemnity obligations) guaranteed by it hereunder) (with or without notice to or knowledge of the Borrower or such Guarantor), which any other Credit Party) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Credit Party for the Borrower its Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 13, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent or any other Secured Party Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by the Administrative Agent or any other Secured Party Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any other Secured Party Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Walter Energy, Inc.)
Guaranty Absolute and Unconditional. (a) Each The Limited Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller and the Limited Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) The Limited Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or the Limited Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) The Limited Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentRepurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Limited Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such the Limited Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Limited Guarantor, any Secured Party the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral -- security, guarantee or right of offset, shall not relieve any the Limited Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Limited Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Limited Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Limited Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Secured Party against any Guarantor. For Obligations.
(f) The Limited Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Sources: Limited Guaranty (Homebanc Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article ARTICLE II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of of, any of the followingfollowing to the extent permitted by applicable law:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Guarantor Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the any Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the any Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Guarantor Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the any Borrower or any other Guarantor, or any changes in the shareholders of the any Borrower or the Guarantor; provided that upon any other Guarantor;such sale, lease or transfer, such assets shall be released in accordance with Section 8.12 of the Collateral Agreement.
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any GrantorGuarantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guarantor Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability collectibility or value of any of the Collateral for the Guarantor Obligations;
(vii) the absence of any attempt to collect the Guarantor Obligations or any part of them from any GrantorGuarantor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, Borrowers as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Guarantor Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the any Borrower or its any Borrower’s estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower Borrowers or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article ARTICLE II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the any Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Guarantor Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent, the Notes Designee, any Note Holder or any Lender upon the guaranty contained in this Article II or acceptance of the guaranty contained in this Article II; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the guaranty contained in this Article II and the grant of the security interests pursuant to Section 3.1; and all dealings between the Debtors and any of the Grantors, on the one hand, and the Collateral Agent, the Notes Designee, any Note Holder or any Lender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article II and the grant of the security interests pursuant to Section 3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Grantor with respect to the Secured Obligations. Each Grantor understands and agrees that the guarantee guaranty contained in this Article II isand the grant of the security interests pursuant to Section 3.1 shall be, and shall be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and performance without regard to (a) the validity or enforceability of the Purchase Money Note, and each Guarantor hereby waives any defense of a surety or guarantor the Advance Facility Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured PA Financing Transaction Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any the Collateral Agent, for the benefit of the Secured Party;
Parties, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower any Debtor or any other Person against the Collateral Agent, the Notes Designee, any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower Note Holder or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofLender, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower any Debtor or such Guarantor), Grantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower any Debtor for the Borrower Secured Obligations, or of such Guarantor Grantor under the guarantee guaranty contained in this Article IIII and the grant of the security interests pursuant to Section 3.1, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any GuarantorGrantor, the Collateral Agent, the Notes Designee, any Secured Party Note Holder or any Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Grantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations or any right of offset with respect thereto, and any failure by the Collateral Agent, Notes Designee, any Secured Party Note Holder or any Lender to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Grantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Grantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Collateral Agent against any GuarantorGrantor. For the purposes hereof of this Agreement, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Security Agreement (First Citizens Bancshares Inc /De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension, amendment, Modification, waiver or accrual of any of the Secured Obligations and notice of or proof of reliance by the PMN Agent upon the guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; the Secured Obligations, and any of them, will conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified, or waived, in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1; and all dealings between the Debtor and any of the Grantors, on the one hand, and the PMN Agent, on the other hand, likewise will be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Debtor or any of the Grantors with respect to the Secured Obligations. Each Subsidiary Grantor understands and agrees that the guarantee guaranty contained in this Article II VI, and the grant by such Subsidiary Grantor of the security interests pursuant to Section 3.1, is, and shall is to be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives performance without regard to (a) the validity or enforceability of any defense of a surety or guarantor Purchase Money Notes or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Transaction Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any the PMN Agent, for the benefit of the Secured Party;
Parties, (iib) any defense, set-off off, or counterclaim (other than a defense of payment or performance) which may at any time might be available to or be asserted by the Borrower Debtor or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofPMN Agent, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Debtor or such Guarantor), Subsidiary Grantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Debtor for the Borrower Secured Obligations, or of such Guarantor under Subsidiary Grantor pursuant to the guarantee guaranty contained in this Article IIVI and the grant of the security interests pursuant to Section 3.1, in bankruptcy or in any other instance.
(b) . When making any demand hereunder pursuant to this Agreement or otherwise pursuing its rights and remedies hereunder pursuant to this Agreement against any GuarantorGrantor, any Secured Party the PMN Agent may, but shall be is under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may might have against the BorrowerDebtor, any other Guarantor Grantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations or any right of offset with respect thereto, and any failure by any Secured Party the PMN Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerDebtor, any other Guarantor Grantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerDebtor, any other Guarantor Grantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall will not relieve any Guarantor Grantor of any obligation or liability hereunderpursuant to this Agreement, and shall will not impair or affect the rights and remedies, whether express, implied or available as a matter of lawLaw, of any Secured Party the PMN Agent against any GuarantorGrantor. For the purposes hereof of this Agreement, “demand” shall include includes the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Holder upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the Guaranty contained in this Section 2; and all dealings between the Company and the Guarantors, on the one hand, and the Holder, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor hereby waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee Guaranty of paymentpayment and performance without regard to (a) the validity or enforceability of the Securities Purchase Agreement, and each Guarantor hereby waives any defense of a surety Note or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Documentother agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Holder, (iib) any defense, set-off or counterclaim (other than a defense of actual payment or performanceand performance of all Obligations) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofHolder, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor Guarantors under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Holder may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor Company or any other Person or against any collateral security or guarantee other guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Holder to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Company or any other Person or to realize upon any such collateral security or guarantee other guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Company or any other Person or any such collateral security, guarantee other guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Holder against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty (Nexaira Wireless Inc.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Article II isGuaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived in reliance upon this Guaranty; and all dealings between the Seller or the Guarantor, on the one hand, and the Buyer, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Seller or the Guarantor with respect to the Obligations. This Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of any Secured Documentthe Repurchase Agreement, the other Program Agreements, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Buyer, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller against the Buyer, or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Seller for the Borrower Obligations, or of such the Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . Notwithstanding the foregoing, in the event the Obligations of the Seller are reduced by a court of competent jurisdiction pursuant to a final non-appealable judgement solely as a result of Buyer engaging in willful misconduct in connection with the Program Agreements, the Guarantor’s Obligations under this Guaranty shall similarly be reduced and Guarantor shall be entitled to make a claim against Buyer for reimbursement of any amounts paid to Buyer in excess of the amount of the reduced Obligations; provided that the Guarantor shall not be entitled to refuse payment under this Guaranty on the basis of any claim regarding the Buyer’s actions unless and until such final non-appealable judgment is rendered. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party the Buyer may, but shall be under no obligation toobligation, join or make a similar demand on or otherwise to pursue or exhaust such rights and remedies as that it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and their successors and assigns thereof, and shall inure to the benefit of the Buyer, and successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full, notwithstanding that from time to time during the term of the Repurchase Agreement the Seller may be free from any Secured Party Obligations.
(b) Without limiting the generality of the foregoing, Guarantor hereby agrees, acknowledges, and represents and warrants to the Buyer as follows:
(i) To the extent permitted by law, Guarantor hereby waives any defense arising by reason of, and any and all right to assert against the Buyer any claim or defense based upon, an election of remedies by the Buyer which in any manner impairs, affects, reduces, releases, destroys and/or extinguishes Guarantor’s subrogation rights, rights to proceed against the Seller or any other guarantor for reimbursement or contribution, and/or any other rights of the Guarantor to proceed against the Seller, against any Guarantorother guarantor, or against any other person or security.
(ii) Guarantor is presently informed of the financial condition of the Seller and of all other circumstances which diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. For The Guarantor hereby covenants that it will make its own investigation and will continue to keep itself informed of the purposes hereof “demand” shall include Seller’s financial condition, the commencement status of other guarantors, if any, of all other circumstances which bear upon the risk of nonpayment and continuance that it will continue to rely upon sources other than the Buyer for such information and will not rely upon the Buyer for any such information. Absent a written request for such information by the Guarantor to the Buyer, Guarantor hereby waives its right, if any, to require the Buyer to disclose to Guarantor any information which the Buyer may now or hereafter acquire concerning such condition or circumstances including, but not limited to, the release of or revocation by any other guarantor.
(iii) Guarantor has independently reviewed the Repurchase Agreement and related agreements and has made an independent determination as to the validity and enforceability thereof, and in executing and delivering this Guaranty to the Buyer, Guarantor is not in any manner relying upon the validity, and/or enforceability, and/or attachment, and/or perfection of any legal proceedingsLiens or security interests of any kind or nature granted by the Seller Parties or any other guarantor to the Buyer, now or at any time and from time to time in the future.
Appears in 1 contract
Sources: Guaranty (ZAIS Financial Corp.)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands OCA waives any and agrees that all notice of the guarantee contained in creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Agent or any Lender upon this Article II isAgreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between OCA and the other Borrowers, on the one hand, and the Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. OCA waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon OCA and the other Borrowers with respect to the Obligations, and without limitation of the foregoing, specifically waives the benefits of Sections 26-7 through 26-9, inclusive, of the General Statutes of North Carolina, as amended from time to time. This ARTICLE XI shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense regularity or enforceability of a surety or guarantor or this Agreement, any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Credit Document, any of the Borrower Obligations or any other collateral Collateral or other security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Agent or any Secured Party;
Lender, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for Borrowers against the Obligations;
(vii) the absence of any attempt to collect the Obligations Agent or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possessionLender, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower OCA or such Guarantor), which any other Borrower) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Borrowers for the Borrower Obligations, or of such Guarantor OCA under the guarantee contained in this Article IIARTICLE XI, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against OCA, the Agent and any Guarantor, any Secured Party Lender may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Borrowers or any other Person or against any collateral Collateral or other security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the Agent or any Secured Party to make any such demand, Lender to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrowers or any such other Person or to realize upon any such collateral Collateral or other security or guarantee or to exercise any such right of offset, or any release of any of the Borrower, any other Guarantor Borrowers or any such other Person or of any such collateral Collateral or other security, guarantee or right of offset, shall not relieve any Guarantor OCA of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Agent or any Secured Party Lender against OCA. This ARTICLE XI shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon OCA and its successors and assigns, and shall inure to the benefit of the Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of OCA under this Agreement shall have been satisfied by payment in full, all Letters of Credit shall have expired or terminated, and the Commitments shall have been terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedingsObligations.
Appears in 1 contract
Sources: Credit Agreement (Orthodontic Centers of America Inc /De/)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Investors upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Company and any of the Guarantors, on the one hand, and the Investors, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives to the extent permitted by law diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or any of the Guarantors with respect to the Obligations. Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, payment and each Guarantor hereby waives any defense performance without regard to: (a) the validity or enforceability of a surety or guarantor the Purchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Transaction Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Investors, (iib) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance or fraud by Investors) which may at any time be available to or be asserted by the Borrower Company or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofInvestors, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Company or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Company for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise other wise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Investors may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the BorrowerCompany, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Investors to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerCompany, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the BorrowerCompany, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Investors against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty (Givbux, Inc.)
Guaranty Absolute and Unconditional. (i) Each Guarantor, to the fullest extent permitted by Applicable Law, waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations, notice of or proof of reliance by any Secured Party upon this Guaranty, and notice of acceptance of this Guaranty. The Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(a) Each Guarantor, to the fullest extent permitted by Applicable Law, waives diligence, presentment, protest, demand for payment, dishonor, and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Secured Obligations, notice of any kind to which such Guarantor may be entitled, and any other act or thing, or omission or delay to do any other act or thing, which in any manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to discharge such Guarantor from any of its Guaranteed Obligations.
(b) Each Guarantor waives, to the fullest extent permitted by Applicable Law, any right such Guarantor may now have or hereafter acquire to revoke, rescind, terminate or limit (except as expressly provided herein) this Guaranty or any of its obligations hereunder which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder.
(c) Each Guarantor understands and agrees that that, to the guarantee contained in fullest extent permitted by Applicable Law, this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of the Loan Agreement or any Secured other Loan Document, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Borrower, any Guarantor or any other Person against any Secured Party;
Party (other than the defense of payment in full in cash), or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for with respect to any Secured Obligations (as defined in the Borrower ObligationsLoan Agreement), or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
(d) The liability of each Guarantor under this Guaranty shall be absolute, irrevocable and unconditional in accordance with its terms and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including without limitation, the following (whether or not such Guarantor consents thereto or has notice thereof), and each Guarantor hereby irrevocably waives, to the fullest extent permitted by applicable law, any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
Appears in 1 contract
Sources: Loan Agreement (Mimedx Group, Inc.)
Guaranty Absolute and Unconditional. (a) Each The Guarantor understands guarantees that, with respect to the Agent, the Issuing Bank, the Collateral Agent and agrees that each Lender, the guarantee contained Obligations will be paid strictly in accordance with the terms of the Credit Agreement and the other Credit Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent, the Collateral Agent, the Issuing Bank or any of the Lenders with respect thereto. This Guaranty is one of payment and performance and not collection and the obligations of the Guarantor under this Article II isGuaranty are independent of the Obligations, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against any Borrower or any other guarantor or whether any Borrower or any other guarantor is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the followingirrespective of:
(i) the invalidity any lack of validity or unenforceability enforceability of any Secured Documentcontractual or other agreement, instrument or document including, without limitation, the Credit Agreement, any of the Borrower Obligations other Credit Documents, any of the Obligations, or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Partythereof;
(ii) any defensechange in the time, set-off manner or counterclaim (other than a defense place of payment of, or performance) which may at in any time be available to other terms of, all or be asserted by any of the Borrower Obligations, or any other Person against amendment or waiver of or any Secured Partyconsent to departure from any contractual or other agreement among the Borrowers and the Agent, the Collateral Agent, the Issuing Bank or any Lender or any instrument or document relating thereto, including, without limitation, any increase in the Obligations resulting from the extension of additional credit to the Borrowers or otherwise;
(iii) the insolvencyany taking, bankruptcy arrangementexchange, reorganizationrelease or non-perfection of any collateral, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any taking, release or amendment or waiver of or consent to or departure from any other Guarantor guaranty (including this Guaranty with respect to any other guarantor), for all or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer failure of any or all other guarantor to satisfy its obligations in respect of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other GuarantorObligations;
(v) any change in manner of application of collateral securing any Obligation, or proceeds thereof, to all or any of the corporate existence (including its constitutionObligations, laws, rules, regulations or power), structure any manner of sale or ownership other disposition of any Grantor collateral for all or in any of the relationship between the Borrower and Obligations or any Grantorother assets of any Borrower;
(vi) any change, restructuring or termination of the fact corporate structure or existence of any Borrower; or
(vii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Borrowers, the Guarantor or any other guarantor with respect to the Obligations (including, without limitation, all defenses based on suretyship or impairment of collateral, and all defenses that any Collateral or Lien contemplated or intended the Borrowers may assert to be given, created or granted as security for the repayment of the Obligations Obligations, including, without limitation, failure of consideration, breach of warranty, fraud, statute of frauds, bankruptcy, lack of legal capacity, statute of limitations, lender liability, accord and satisfaction, and usury) or which might otherwise constitute a defense to this Guaranty and the obligations of the Guarantor under this Guaranty. This Guaranty shall not be properly perfected or created, or shall prove continue to be unenforceable effective or subordinate to be reinstated, as the case may be, if at any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value time any payment of any of the Obligations is rescinded or must otherwise be returned by the Agent, the Collateral for Agent, the Obligations;
(vii) Issuing Bank or any Lender upon the absence insolvency, bankruptcy or reorganization of any attempt to collect Borrower or otherwise, all as though such payment had not been made. The Guarantor agrees that if any Borrower or any other guarantor of all or a portion of the Obligations or any part is the subject of them from any Grantor;
(A) any Secured Party’s election, in any a bankruptcy proceeding instituted under chapter Title 11 of the Bankruptcy United States Code, it will not assert the pendency of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all such proceeding or any portion of any Secured Party’s claim (or claims) for repayment order entered therein as a defense to the timely payment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Credit Agreement (Lynch Corp)
Guaranty Absolute and Unconditional. (a) Each The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by MLMCI upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller, any other guarantor and the Guarantor, on the one hand, and MLMCI, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) The Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or any other guarantor or the Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that MLMCI exhaust any right, power or remedy or take any action against the Seller or any other guarantor or against any assets subject to the Repurchase Agreement and other formalities of any kind.
(c) The Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentRepurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
MLMCI, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Seller or any other Person guarantor against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofMLMCI, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such any other guarantor or the Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller or any other guarantor from the Borrower Obligations, or of such the Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Guarantor, any Secured Party MLMCI may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, MLMCI to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of MLMCI against the Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor and the successors and assigns thereof, and shall inure to the benefit of MLMCI, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement, shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Secured Party against any Guarantor. For Obligations.
(f) The Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or proof of reliance by any Secured Party upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Borrower Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between Borrower and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or any of the Guarantors with respect to the Borrower Obligations. Each Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives any defense performance (and not of a surety collection) without regard to (a) the validity or guarantor enforceability of the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance hereunder) which that may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “"demand” " shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Guaranty and Collateral Agreement (Regal Entertainment Group)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and shall be construed as, a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Guaranteed Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured PartyGuaranteed Creditor;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured PartyGuaranteed Creditor;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor Obligor or in the relationship between the Borrower and any GrantorObligor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any GrantorObligor;
(A) any Secured PartyGuaranteed Creditor’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured PartyGuaranteed Creditor’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties Guaranteed Creditors or any of them for any reason; or (G) failure by any Secured Party Guaranteed Creditor to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party Guaranteed Creditor may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party Guaranteed Creditor to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Guaranteed Creditor against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor, to the fullest extent permitted by Applicable Law, waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations, notice of or proof of reliance by any Secured Party upon this Guaranty, and notice of acceptance of this Guaranty. The Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) Each Guarantor, to the fullest extent permitted by Applicable Law, waives diligence, presentment, protest, demand for payment, dishonor, and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Obligations, notice of any kind to which such Guarantor may be entitled, and any other act or thing, or omission or delay to do any other act or thing, which in any manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to discharge such Guarantor from any of its Guaranteed Obligations.
(c) Each Guarantor waives, to the fullest extent permitted by Applicable Law, any right such Guarantor may now have or hereafter acquire to revoke, rescind, terminate or limit (except as expressly provided herein) this Guaranty or any of its obligations hereunder.
(d) Each Guarantor understands and agrees that that, to the guarantee contained in fullest extent permitted by Applicable Law, this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of payment, and each Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
payment without regard to (i) the invalidity validity or unenforceability enforceability of the Loan Agreement or any Secured other Loan Document, any of the Borrower Guaranteed Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Borrower, any other Guarantor or any other Person against any Secured Party;
Party (other than the defense of payment in full in cash), or (iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower with respect to any Obligations, or of such Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof hereof, “demand” shall include the commencement and continuance of any legal proceedings.
(e) Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the documents evidencing such Guaranteed Obligations, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Collateral Agent or any other Secured Party with respect thereto. The liability of each Guarantor under this Guaranty shall be absolute, irrevocable and unconditional in accordance with its terms and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including without limitation, the following (whether or not such Guarantor consents thereto or has notice thereof), and each Guarantor hereby irrevocably waives, to the fullest extent permitted by applicable law, any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(i) (x) any change in the amount, interest rate, due date or other term of all or any portion of the Guaranteed Obligations, (y) any change in the time, place or manner of payment of all or any portion of the Guaranteed Obligations, or (z) any amendment, release, consent to the departure from, or other indulgence with respect to, or any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action or inaction under or in respect of, the Loan Agreement, any of the other Loan Documents or any other documents, instruments or agreements relating to all or any portion of the Guaranteed Obligations or any other instrument or agreement referred to therein or evidencing all or any portion of the Guaranteed Obligations or any assignment or transfer of any of the foregoing;
(ii) any lack of validity or enforceability of the Loan Agreement, any of the other Loan Documents, or any other document, instrument or agreement referred to therein or evidencing all or any portion of the Guaranteed Obligations or any assignment or transfer of any of the foregoing;
(iii) any furnishing to the Collateral Agent or any other Secured Party of any security for all or any portion of the Guaranteed Obligations, or any sale, exchange, release or surrender of, or realization on, any collateral securing all or any portion of the Guaranteed Obligations;
(iv) any settlement or compromise of all or any portion of the Guaranteed Obligations, any security therefor, or any liability of any other party with respect to all or any portion of the Guaranteed Obligations, or any subordination of the payment of all or any portion of the Guaranteed Obligations to the payment of any other liability of the Borrower or any other Loan Party;
(v) any Insolvency Proceeding relating to such Guarantor, the Borrower, any other Loan Party or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver, or by any court, in any such Insolvency Proceeding;
(vi) any act or failure to act by the Borrower, any other Loan Party or any other Person which may adversely affect such Guarantor’s subrogation rights, if any, against the Borrower to recover payments made under this Guaranty;
(vii) any release, amendment or waiver of, or consent to any departure from, any guaranty of all or any portion of the Guaranteed Obligations;
(viii) any pledge, exchange, release or non-perfection or impairment of any security interest or other Lien on any Collateral or other collateral securing in any way all or any portion of the Guaranteed Obligations;
(ix) any application of sums paid by the Borrower, any other Guarantor or any other Person with respect to the liabilities of the Borrower to the Collateral Agent or any other Secured Party, regardless of what liabilities of the Borrower remain unpaid;
(x) any defect, limitation or insufficiency in the borrowing power of the Borrower or any Guarantor or in the exercise thereof;
(xi) any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect of this Agreement, the Loan Agreement or any other Loan Document; or
(xii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a Guarantor hereunder (other than the final payment in full in cash and performance in full of the Obligations (other than Unasserted Contingent Obligations)), including the failure by either Administrative Agent or any Secured Party to provide copies of any notice delivered to the Borrower or any Guarantor in accordance with the terms of any of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Phi Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor waives, to the maximum extent permitted by Requirements of Law, any and all notice of or proof of reliance by any Secured Party upon the guaranty contained in this Section 2 or acceptance of the guaranty contained in this Section 2; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between any of the Borrowers and any of the Guarantors, on the one hand, and the Administrative Agent and the other Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Each Guarantor understands and agrees agrees, to the extent permitted by applicable Requirements of Law, that the guarantee guaranty contained in this Article II is, and Section 2 shall be construed as, as a continuing, completedabsolute, absolute irrevocable, independent and unconditional guarantee guaranty of payment, payment when due and not collectability. Each Guarantor agrees the guaranty contained in this Section 2 is a primary obligation of each Guarantor and not merely a contract of surety. Each Guarantor hereby waives waives, to the maximum extent permitted by Requirements of Law, any defense and all defenses (other than any suit for breach of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect contractual provision of any of the following Loan Documents) that it may have arising out of or in connection with any and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any all of the following:
: (i) the invalidity or unenforceability of any Secured Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence time, place, manner or place of payment, amendment, waiver or increase in the Secured Obligations, (including its constitutionii) any exchange, lawstaking, rulesor release of Collateral, regulations or power), (iii) any change in the structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value existence of any of the Collateral for the Obligations;
Borrowers, (vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(Aiv) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) Collateral to any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; Obligations or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixv) any other circumstance or act whatsoever, including any action or omission whatsoever (other than indefeasible payment in full of the type described in Section 2.04 Secured Obligations guaranteed by it hereunder) (with or without notice to or knowledge of any of the Borrower Borrowers or such Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of any of the Borrower Borrowers for the Borrower Secured Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any of the Secured Party Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against any of the BorrowerBorrowers, any other Guarantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations guaranteed by such Guarantor hereunder or any right of offset with respect thereto, and any failure by any of the Secured Party Parties to make any such demand, to pursue such other rights or remedies or to collect any payments from any of the BorrowerBorrowers, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Guarantor understands hereby waives any and agrees that all notice of the guarantee creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Guaranteed Parties upon the guaranty contained in this Article II isSection 2 or acceptance of the guaranty contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 2; and all dealings between Borrower and Guarantor, on the one hand, and the Guaranteed Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 2. Guarantor hereby waives, to the extent permitted by law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Borrower or Guarantor with respect to the Obligations. Guarantor understands that the guaranty contained in this Section 2 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives any defense of a surety performance without regard to (a) the validity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following Note Purchase Agreement and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Documentother Note Documents, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Guaranteed Parties, (iib) any defense, set-off or counterclaim (other than a defense of actual payment or performanceand performance of all Obligations) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofGuaranteed Parties, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee guaranty contained in this Article IISection 2, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party the Guaranteed Parties may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it they may have against the Borrower, any other Guarantor Borrower or any other Person or against any collateral security or guarantee other guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Guaranteed Parties to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Borrower or any other Person or to realize upon any such collateral security or guarantee other guaranty or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Borrowers or any other Person or any such collateral security, guarantee other guaranty or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Guaranteed Parties against any Guarantor. For The obligations of the purposes hereof “demand” shall include Guarantor are principal and independent obligations from the commencement obligations of the parties to the Note Purchase Agreement and continuance the other Note Documents or any other agreement. Therefore, the Guarantor cannot, in order to delay or to avoid the unconditional and immediate performance of its obligations under this Guaranty, invoke any defense or exception relating to or resulting from any current or future relationships (including legal proceedingsrelationships) nor any contentious or non-contentious claims, between Borrower and the Guaranteed Parties or any other third party, or any other challenge of Borrower or of a third party.
Appears in 1 contract
Sources: Note Purchase Agreement (Aerie Pharmaceuticals Inc)
Guaranty Absolute and Unconditional. (a) Each Guarantor Grantor waives any and all notice of the creation, renewal, extension, amendment, modification, waiver or accrual of any of the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1; and all dealings between the Debtor and any of the Grantors, on the one hand, and the Collateral Agent, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Article VI and the grant of the security interests pursuant to Section 3.1. Each Grantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Debtor or any of the Grantors with respect to the Secured Obligations. Each Grantor understands and agrees that the guarantee guaranty contained in this Article II isVI and the grant of the security interests pursuant to Section
3.1 shall be, and shall be construed asto be, a continuing, completed, absolute and unconditional guarantee guaranty of paymentpayment and performance without regard to (a) the validity or enforceability of the Advance Facility Agreement, and each Guarantor hereby waives any defense of a surety or guarantor Purchase Money Notes Guaranty, any Purchase Money Notes or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Transaction Document, any of the Borrower Secured Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any the Collateral Agent, for the benefit of the Secured Party;
Parties, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower Debtor or any other Person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofCollateral Agent, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Debtor or such Guarantor), Grantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Debtor for the Borrower Secured Obligations, or of such Guarantor under Grantor pursuant to the guarantee guaranty contained in this Article IIVI and the grant of the security interests pursuant to Section 3.1, in bankruptcy or in any other instance.
(b) . When making any demand hereunder pursuant to this Agreement or otherwise pursuing its rights and remedies hereunder against any GuarantorGrantor, any Secured Party the Collateral Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may might have against the BorrowerDebtor, any other Guarantor Grantor or any other Person or against any collateral security or guarantee guaranty for the Borrower Secured Obligations or any right of offset with respect thereto, and any failure by any Secured Party the Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from the BorrowerDebtor, any other Guarantor Grantor or any other Person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the BorrowerDebtor, any other Guarantor Grantor or any other Person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Guarantor Grantor of any obligation or liability hereunderpursuant to this Agreement, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party the Collateral Agent against any GuarantorGrantor. For the purposes hereof of this Agreement, “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Guaranty Absolute and Unconditional. (a) Each Subsidiary Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by any Secured Party upon the guaranty contained in this Section 12 or acceptance of the guaranty contained in this Section 12; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guaranty contained in this Section 12; and all dealings between the Borrower and any of the Subsidiary Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guaranty contained in this Section 12. Each Subsidiary Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Subsidiary Guarantors with respect to the Obligations. Each Subsidiary Guarantor understands and agrees that the guarantee guaranty contained in this Article II is, and Section 12 shall be construed as, as a continuing, completed, absolute and unconditional guarantee guaranty of payment, payment and each Guarantor hereby waives any defense performance without regard to (a) the validity or enforceability of a surety or guarantor the Credit Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee guaranty or right of offset with respect thereto at any time or from time to time held by any Secured Party;
, (iib) any defense, set-off or counterclaim (other than a defense of payment or performanceperformance hereunder) which may at any time be available to or be asserted by the Borrower or any other Person person against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower or such Subsidiary Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Subsidiary Guarantor under the guarantee guaranty contained in this Article IISection 12, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Subsidiary Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Subsidiary Guarantor or any other Person person or against any collateral security or guarantee guaranty for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Subsidiary Guarantor or any other Person person or to realize upon any such collateral security or guarantee guaranty or to exercise any such right of offset, or any release of the Borrower, any other Subsidiary Guarantor or any other Person person or any such collateral security, guarantee guaranty or right of offset, shall not relieve any Subsidiary Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Subsidiary Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
Appears in 1 contract
Sources: Loan and Security Agreement (Nes Rentals Holdings Inc)
Guaranty Absolute and Unconditional. (a) Each The Transferee OP Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Transferee or the Transferee OP Guarantor and any Beneficiary shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Transferee OP Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Transferee or the Transferee OP Guarantor with respect to the Obligations. The Transferee OP Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment and performance (and not merely of collectibility) without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect enforceability of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured Relevant Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
Beneficiary, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which that may at any time be available to or be asserted by the Borrower or any other Person Transferee against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBeneficiary, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Transferee or such the Transferee OP Guarantor), which ) that constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower Transferee for the Borrower Obligations, or of such the Transferee OP Guarantor under the guarantee contained in this Article IIGuaranty, in bankruptcy or in any other instance.
(b) . When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Transferee OP Guarantor, any Secured Party Beneficiary may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Transferee or any other Person person or entity or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, Beneficiary to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Transferee or any such other Person person or entity or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Transferee or any such other Person person or entity or any such collateral security, guarantee or right of offset, shall not relieve any the Transferee 0P Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party Beneficiary against any the Transferee OP Guarantor. For This Guaranty shall remain in full force and effect and be binding in accordance with and to the purposes hereof “demand” extent of its terms upon the Transferee OP Guarantor and the successors and assigns thereof, and shall include inure to the commencement benefit of the Beneficiaries, and continuance their respective PARTICIPATION AGREEMENT [N603SW] A-3 68 successors, endorsees, transferees and assigns, until all of the Obligations and the obligations of the Transferee OP Guarantor under this Agreement shall have been satisfied by payment and performance in full. The Transferee OP Guarantor further agrees that, without limiting the generality of this Guaranty, if any legal proceedingsBeneficiary (or any assignee thereof) shall be prevented by applicable law from exercising its remedies (or any of them) against the Transferee under any Operative Document, such Beneficiary (or any assignee thereof) shall be entitled to receive hereunder from the Transferee OP Guarantor, upon demand therefor, the sums that would have otherwise been due from the Transferee had such remedies been able to be exercised.
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Guaranty Absolute and Unconditional. (a) Each The Limited Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Buyer upon this Guaranty or acceptance of this Guaranty, the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Seller and the Limited Guarantor, on the one hand, and the Buyer, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guaranty.
(b) The Limited Guarantor hereby expressly waives all set-offs and counterclaims and all diligence, presentments, demands for payment, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, notices of sale, notice of default or nonpayment to or upon the Seller or the Limited Guarantor, surrender or other handling or disposition of assets subject to the Repurchase Agreement, any requirement that Buyer exhaust any right, power or remedy or take any action against the Seller or against any assets subject to the Repurchase Agreement, and other formalities of any kind.
(c) The Limited Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentpayment without regard to (a) the validity, and each Guarantor hereby waives any defense of a surety regularity or guarantor or any other obligor on any obligations arising in connection with or in respect of any enforceability of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentRepurchase Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;
the Buyer, (iib) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Secured Party;
(iii) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the Obligations, including any discharge ofBuyer, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(v) any change in the corporate existence (including its constitution, laws, rules, regulations or power), structure or ownership of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the Collateral for the Obligations;
(vii) the absence of any attempt to collect the Obligations or any part of them from any Grantor;
(A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Secured Party’s claim (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (F) the avoidance of any Lien in favor of the Secured Parties or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ixc) any other circumstance or act whatsoever, including any action or omission of the type described in Section 2.04 whatsoever (with or without notice to or knowledge of the Borrower Seller or such the Limited Guarantor), ) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for Seller from the Borrower Obligations, or of such the Limited Guarantor under the guarantee contained in from this Article IIGuaranty, in bankruptcy or in any other instance.
(bd) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any the Limited Guarantor, any Secured Party the Buyer may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor Seller or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, the Buyer to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor Seller or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor Seller or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve any the Limited Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Buyer against the Limited Guarantor.
(e) This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Limited Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Buyer, and its successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Limited Guarantor under this Guaranty shall have been satisfied by payment in full and the Repurchase Agreement shall be terminated, notwithstanding that from time to time prior thereto the Seller may be free from any Secured Party against any Guarantor. For Obligations.
(f) The Limited Guarantor waives, to the purposes hereof “demand” shall include the commencement and continuance fullest extent permitted by applicable law, all defenses of any legal proceedingssurety to which it may be entitled by statute or otherwise.
Appears in 1 contract
Sources: Limited Guaranty (Homebanc Corp)
Guaranty Absolute and Unconditional. (a) Each Guarantor understands and agrees that the guarantee contained in this Article II is, and Guaranty shall be construed as, as a continuing, completed, absolute and unconditional guarantee of paymentthe full and punctual payment and performance of all Guaranty Obligations and Guaranty Expenses and not of their collectability only and is in no way conditioned upon any requirement that any Buyer Party first attempt to collect any of the Guaranty Obligations or Guaranty Expenses from Seller, and each Guarantor hereby waives any defense without regard to (a) the validity, regularity or enforceability of a surety or guarantor the Series 2020-SPIADVF1 Repurchase Agreement or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations hereunder shall not be discharged or otherwise affected as a result of any of the following:
(i) the invalidity or unenforceability of any Secured DocumentProgram Agreement, any of the Borrower Guaranty Obligations or any other collateral security Guaranty Expenses therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Buyer Party;
, (iib) any defense, set-off off, deduction, abatement, recoupment, reduction or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person Seller against any Secured Buyer Party;
, (iiic) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power authority of Seller to execute or deliver the Borrower or any other Guarantor or any other Person at any time liable for the payment of all or part of the ObligationsSeries 2020-SPIADVF1 Repurchase Agreement, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest therein) in or as a result of such proceeding;
(iv) any sale, lease or transfer of any or all of the assets of the Borrower or any other Guarantor, or any changes in the shareholders of the Borrower or any other Guarantor;
(vd) any change in the corporate existence (including its constitutiontime, laws, rules, regulations manner or power), structure or ownership place of any Grantor or in the relationship between the Borrower and any Grantor;
(vi) the fact that any Collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Guarantors that it is not entering into this Agreement in reliance onpayment of, or in contemplation of the benefits any other term of, or amendment to the validitySeries 2020-SPIADVF1 Repurchase Agreement, enforceability, collectability or value of any of the Collateral for the Obligations;
(viie) the absence of any attempt action to collect enforce the Obligations Series 2020-SPIADVF1 Repurchase Agreement, to recover any judgment against Seller or any part of them from any Grantor;
to enforce a judgment against Seller under the Series 2020-SPIADVF1 Repurchase Agreement, (A) any Secured Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; (B) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code; (Cf) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion occurrence of any Secured Party’s claim Event of Default under the Series 2020-SPIADVF1 Repurchase Agreement, (or claims) for repayment of the Obligations; (D) any use of cash collateral under Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding; (Fg) the avoidance existence of any Lien in favor of the Secured Parties bankruptcy, insolvency, reorganization or any of them for any reason; or (G) failure by any Secured Party to file or enforce a claim against the Borrower or its estate in any bankruptcy or insolvency case or proceeding; or
(ix) any other circumstance or act whatsoeversimilar proceedings involving Seller, including any action or omission of the type described in Section 2.04 (with or without notice to or knowledge of the Borrower or such Guarantor), which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee contained in this Article II, in bankruptcy or in any other instance.
(b) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.755039518 22720164
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