Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 3 contracts
Sources: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (General Maritime Corp / MI)
Guaranty. In order Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to induce the Administrative Agenteach Noteholder, the Collateral Agent due and punctual payment in full of (a) the Lenders to enter into this Agreement principal of, Make-Whole Amount (if any), prepayment premium (if any) and to extend credit hereunderinterest on (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and induce the any other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as suretyamounts due under, the full Notes when and prompt payment when due, as the same shall become due and payable (whether upon maturity, at stated maturity or by required or optional prepayment or by acceleration or otherwise) and (b) any other sums which may become due under the terms and provisions of the Notes, the Note Purchase Agreement or any other Finance Document executed in connection therewith (all such obligations described in clauses (a) and (b) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations, each Guarantor agrees to pay the same when due to the Noteholders entitled thereto, without demand, presentment, protest or notice of any and all kind, in lawful money of the Obligations United States of the Borrower America, pursuant to the Guaranteed Creditors. If any or all of requirements for payment specified in the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent Notes and the other Guaranteed Creditors in collecting any of the ObligationsNote Purchase Agreement. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received Each default in payment or on account of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each Noteholder harmless from and against any damage, loss, cost or expense (including the reasonable fees and disbursements of the aforesaid payees repays all any law firm or part of said amount by reason external counsel) which such Noteholder may incur or be subject to as a consequence, direct or indirect, of (ix) any judgmentbreach by such Guarantor, decree by any other Guarantor or order by the Company of any court warranty, covenant, term or administrative body having jurisdiction over such payee condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Purchase Agreement or any other Finance Document, together with all expenses resulting from the compromise or defense of its property any claims or (ii) any settlement or compromise liabilities arising as a result of any such claim effected by breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Note Purchase Agreement or any other Finance Document and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such payee Guarantor’s liability hereunder is joint and several with the other Guarantors and any such claimant (including other Person(s) who may guarantee the Borrower), then obligations and Indebtedness under and in such event, each respect of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, Notes and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeNote Purchase Agreement.
Appears in 3 contracts
Sources: Note Purchase Agreement (Tampa Electric Co), Note Purchase Agreement (Tampa Electric Co), Note Purchase Agreement (Tampa Electric Co)
Guaranty. In order to induce the Administrative Facility Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Parent from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Parent hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC The Parent hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, Parent unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Facility Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Facility Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC Parent agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Parent Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Parent shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agent, the Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements, Other Hedging Agreements and Other Hedging Cash Management Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements, Other Hedging Agreements and Other Hedging Cash Management Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower Guaranteed Parties to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower Guaranteed Parties to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness Guaranteed Obligations to the Administrative Agent for the benefit of the Administrative Agent and/or the other Guaranteed Creditors, or orderCreditors to which such Guaranteed Obligations are owed, on demand, demand together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the ObligationsGuaranteed Obligations to the extent reimbursable under Section 14.01. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerGuaranteed Parties), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 3 contracts
Sources: Credit Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agent, the Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC GMSCII from the continuation and conversion of the Loans Loans, the deemed issuance of the Existing Letters of Credit hereunder and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC GMSCII hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC GMSCII hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCGMSCII, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC GMSCII agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSCGMSCII, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSCGMSCII, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 3 contracts
Sources: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (General Maritime Corp / MI)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Other Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Parent Guarantor from the continuation and conversion proceeds of the Loans and Loans, the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Parent Guarantor hereby agrees with the Guaranteed Secured Creditors as follows: Each of the Parent, Arlington Parent Guarantor hereby and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, to the Secured Creditors the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Secured Obligations of the Borrower to the Guaranteed Secured Creditors. This is a guaranty of payment and not of collection. If any or all of the Secured Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCParent Guarantor, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Secured Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Secured Creditors in collecting any of the Secured Obligations. If a claim is ever made upon any Guaranteed Secured Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Secured Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of event the Parent, Arlington and GMSC Parent Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beParent Guarantor, notwithstanding any revocation of this Holdings Parent Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Parent Guarantor shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 3 contracts
Sources: Credit Agreement (Athena Spinco Inc.), Credit Agreement (Athena Spinco Inc.), Credit Agreement (Athena Spinco Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Parent from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each issuance of the ParentLetters of Credit, Arlington and GMSC the Parent hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington Parent hereby and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, to the Guaranteed Creditors the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. This is a guaranty of payment and not of collection. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of event the Parent, Arlington and GMSC Parent agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Parent Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Parent shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 3 contracts
Sources: Credit Agreement (Atwood Oceanics Inc), Credit Agreement (Atwood Oceanics Inc), Credit Agreement (Atwood Oceanics Inc)
Guaranty. In order to induce the Administrative AgentFor value received, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereundersufficiency of which is hereby acknowledged, and induce in consideration of credit and/or financial accommodation heretofore or hereafter from time to time made or granted to the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received Borrowers by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsSecured Parties, each of the ParentGuarantor hereby absolutely, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as suretyto Administrative Agent, for the ratable benefit of the Secured Parties, the full and prompt payment when due, whether upon at stated maturity, acceleration by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of the Guaranteed Obligations (as hereafter defined) and the punctual performance of all of the terms contained in the documents executed by one or more Borrowers in favor of one or more Secured Parties in connection with the Guaranteed Obligations. This Guaranty is a guaranty of payment and performance and is not merely a guaranty of collection. As used herein, the term “Guaranteed Obligations” means any and all existing and future Obligations of any Borrower to any Secured Party, whether associated with any credit or other financial accommodation made to or for the benefit of any Borrower by any Secured Party or otherwise and whenever created, arising, evidenced or acquired (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by the Secured Parties in connection with the collection or enforcement thereof); provided, however, that the definition of “Guaranteed Obligations” shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor. Without limiting the generality of the Obligations of the Borrower to foregoing, the Guaranteed Creditors. If Obligations shall include any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due such Debt, obligations, and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses liabilities which may be incurred or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any Guarantor or any Borrower under the Administrative Agent and Bankruptcy Code, any successor statute or any other liquidation, conservatorship, bankruptcy, assignment for the other Guaranteed Creditors in collecting any benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the Obligations. If a claim is ever made upon United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally (collectively, “Debtor Relief Laws”), and shall include interest that accrues after the commencement by or against any Guaranteed Creditor for repayment or recovery Borrower of any proceeding under any Debtor Relief Laws. Anything contained herein to the contrary notwithstanding, the obligations of each Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or amounts received in payment conveyance under Section 548 of the Bankruptcy Code or on account any comparable provisions of any of the Obligations and any of the aforesaid payees repays all similar federal or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeestate law.
Appears in 3 contracts
Sources: Loan Agreement (Key Energy Services Inc), Loan Agreement (Key Energy Services Inc), Loan and Security Agreement (Key Energy Services Inc)
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of make the Loans and the entering into Issuers to issue Letters of such Interest Rate Protection Agreements and Other Hedging AgreementsCredit, each of the ParentGuarantor hereby absolutely, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, the full and prompt punctual payment when due, whether upon maturityat stated maturity or earlier, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Loan Document, of all the Obligations, whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Borrower, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under the Bankruptcy Code, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.
(b) Each Guarantor further agrees that, if (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee payment made by Borrower or any of its property other person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (ii) the proceeds of Collateral are required to be returned by any settlement Guarantied Party to the Borrower, its estate, trustee, receiver or compromise any other party, including any Guarantor, under any bankruptcy law, equitable cause or any other Requirement of Law, then, to the extent of such payment or repayment, any such Guarantor's liability hereunder (and any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other Collateral securing such Guarantor's liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such claim effected by such payee with any such claimant (including the Borrower), then and Guarantor in such event, each respect of the Parent, Arlington and GMSC agrees that amount of such payment (or any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty Lien or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if Collateral securing such amount had never originally been received by any such payeeobligation).
Appears in 2 contracts
Sources: Guaranty (Hayes Lemmerz International Inc), Guaranty (Aviall Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent The Guarantors hereby jointly and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby severally unconditionally and irrevocably guarantees as primary obligor and not merely as surety, guarantee the full and prompt payment when due, whether upon at stated maturity, by acceleration or otherwise, of, and the performance of, (a) the Obligations, whether now or hereafter existing and whether for principal, interest, fees, expenses or otherwise, (b) all Swap Obligations owed to any Lender or any Affiliate of any and all a Lender (provided at the time of execution of the Swap Contract related to such Swap Obligations of the Borrower such Lender is a party to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderCredit Agreement), each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with (c) any and all reasonable documented out-of-pocket expenses which may be incurred by (including, without limitation, reasonable expenses and reasonable counsel fees and expenses of the Administrative Agent and the other Guaranteed Creditors in collecting Lenders) incurred by any of the Obligations. If a claim is ever made upon Guarantied Parties in enforcing any Guaranteed Creditor rights under this Guaranty and (d) all present and future amounts that would become due but for repayment or recovery the operation of any amount provision of Debtor Relief Laws, and all present and future accrued and unpaid interest, including, without limitation, all post-petition interest if the Borrower or amounts received any Guarantor voluntarily or involuntarily becomes subject to any Debtor Relief Laws (the items set forth in payment clauses (a), (b), (c) and (d) immediately above being herein referred to as the "Guarantied Obligations"). Upon failure of the Borrower to pay any of the Guarantied Obligations when due after the giving by the Administrative Agent and/or the Lenders of any notice and the expiration of any applicable cure period in each case provided for in the Credit Agreement and other Loan Documents (whether at stated maturity, by acceleration or on account otherwise), the Guarantors hereby further jointly and severally agree to promptly pay the same after the Guarantors' receipt of notice from the Administrative Agent of the Borrower's failure to pay the same, without any other demand or notice whatsoever, including without limitation, any notice having been given to any Guarantor of either the acceptance by the Guarantied Parties of this Guaranty or the creation or incurrence of any of the Guarantied Obligations. This Guaranty is an absolute guaranty of payment and performance of the Guarantied Obligations and not a guaranty of collection, meaning that it is not necessary for the Guarantied Parties, in order to enforce payment by the Guarantors, first or contemporaneously to accelerate payment of any of the aforesaid payees repays Guarantied Obligations, to institute suit or exhaust any rights against any Loan Party, or to enforce any rights against any Collateral. Notwithstanding anything herein or in any other Loan Document to the contrary, in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if, as a result of applicable law relating to fraudulent conveyance or fraudulent transfer, including Section 548 of Bankruptcy Code or any applicable provisions of comparable state law (collectively, "Fraudulent Transfer Laws"), the obligations of any Guarantor under this Section 1 would otherwise, after giving effect to (a) all other liabilities of such Guarantor, contingent or part otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of said such Guarantor in respect of intercompany Indebtedness to the Borrower to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by reason such Guarantor hereunder) and (b) to the value as assets of such Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Laws) of any rights of subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to (i) any judgmentapplicable requirements of Law, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) Section 10 hereof or (iii) any settlement other contractual obligations providing for an equitable allocation among such Guarantor and other Subsidiaries or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each Affiliates of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation Borrower of obligations arising under this Holdings Guaranty or other instrument evidencing any liability guaranties of the BorrowerGuarantied Obligations by such parties, and the Parentbe held or determined to be void, Arlington invalid or GMSCunenforceable, as the case may be, shall both be and remain liable or subordinated to the aforesaid payees hereunder for claims of any other creditors, on account of the amount so repaid of its liability under this Section 1, then the amount of such liability shall, without any further action by such Guarantor, any Lender, the Administrative Agent or recovered any other Person, be automatically limited and reduced to the same extent highest amount that is valid and enforceable and not subordinated to the claims of other creditors as if determined in such amount had never originally been received by any such payeeaction or proceeding.
Appears in 2 contracts
Sources: Guaranty (Helen of Troy LTD), Guaranty (Helen of Troy LTD)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements hereunder and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC each Guarantor from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington and GMSC Guarantor hereby agrees with the Guaranteed Creditors Lenders as follows: Each of the Parent, Arlington and GMSC Guarantor hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, surety the full and prompt payment when duedue in cash, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, Guarantor unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. This Guaranty is a continuing one and the Guaranteed Obligations shall be conclusively presumed to have been created in reliance hereon. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees Guaranteed Creditors repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee Guaranteed Creditor or any of its property or (ii) any settlement or compromise of any such claim effected by such payee Guaranteed Creditor with any such claimant (including the Borrower), then and in such event, event each of the Parent, Arlington and GMSC Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation of this Holdings Guaranty or any other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, each Guarantor shall both be and remain liable to the aforesaid payees Guaranteed Creditors hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Texas Genco Holdings Inc), Credit Agreement (Centerpoint Energy Inc)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent Issuing Lender and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Swap Agreements and in recognition of the direct benefits to be received by the Parent, Arlington Bermuda Holdings and GMSC Stratus Bermuda from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and Other Hedging Swap Agreements, each of the Parent, Arlington Bermuda Holdings and GMSC Stratus Bermuda hereby agrees agree with the Guaranteed Creditors as follows: Each :
(i) each of the Parent, Arlington Bermuda Holdings and GMSC Stratus Bermuda hereby unconditionally and irrevocably guarantees as primary obligor to the Administrative Agent, for the benefit of the Guaranteed Creditors and not merely as suretytheir respective successors, indorsees, transferees and assigns, the full prompt and prompt complete payment and performance by the Borrower when due, due (whether upon at the stated maturity, by acceleration or otherwise) of the Guaranteed Obligations, and each of Bermuda Holdings and Stratus Bermuda further agrees to pay any and all expenses (including, without limitation, all reasonable fees and disbursements of the Obligations of the Borrower to counsel) which may be paid or incurred by the Guaranteed Creditors. If Creditors in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Guaranteed Obligations and/or enforcing any rights with respect to, or collecting against, Bermuda Holdings and/or Stratus Bermuda under this Bermuda Holdings and Stratus Bermuda Guaranty.
(b) Anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of Bermuda Holdings and Stratus Bermuda hereunder and under the other Credit Documents shall in no event exceed the amount which can be guaranteed by Bermuda Holdings and/or Stratus Bermuda under applicable federal and state laws relating to the insolvency of debtors.
(c) Each of Bermuda Holdings and Stratus Bermuda agrees that the Guaranteed Obligations may at any time and from time to time exceed the amount of the Borrower to liability of Bermuda Holdings and/or Stratus Bermuda hereunder without impairing this Bermuda Holdings and Stratus Bermuda Guaranty or affecting the rights of any Guaranteed Creditors becomes due and payable Creditor hereunder.
(d) No payment or payments made by the Borrower, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the any Subsidiary Guarantor or any other Guaranteed Creditors, Person or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred received or collected by the Administrative Agent and or any Lender from the Borrower, any Subsidiary Guarantor or any other Guaranteed Creditors Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in collecting reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any of Bermuda Holdings and Stratus Bermuda hereunder which shall, notwithstanding any such payment or payments other than payments made by any of Bermuda Holdings and Stratus Bermuda in respect of the Guaranteed Obligations or payments received or collected from Bermuda Holdings and Stratus Bermuda in respect of the Guaranteed Obligations. If , remain liable for the Guaranteed Obligations up to the maximum liability of Bermuda Holdings and/or Stratus Bermuda hereunder until the Guaranteed Obligations are paid in full, the Revolving Credit Commitments are terminated and either no Letters of Credit are outstanding or each outstanding Letter of Credit has been Cash Collateralized so that it is fully secured to the satisfaction of the Administrative Agent.
(e) Each of Bermuda Holdings and Stratus Bermuda agrees that whenever, at any time, or from time to time, it shall make any payment to a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of its liability hereunder, it will notify the Obligations Administrative Agent in writing that such payment is made under this Bermuda Holdings and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over Stratus Bermuda Guaranty for such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeepurpose.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.), Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the Lenders Company to enter into this Agreement, SAP SE, a European Company (Societas Europaea, SE) established under the laws of Germany and the European Union, with a business address at ▇▇▇▇▇▇▇-▇▇▇▇-▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (“Guarantor”), intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the Company the due and punctual payment and performance of (i) all of Parent’s and Merger Sub’s obligations under this Agreement, in each case as and when due, including payment of Merger Consideration and any breach of this Agreement by Parent or Merger Sub (collectively, the “Guaranteed Obligations”). This guarantee may not be revoked or terminated and to extend credit hereundershall remain in full force and effect without interruption and shall be binding on Guarantor and its successors and assigns until the Guaranteed Obligations have been satisfied in full. Guarantor further covenants and agrees that, if requested by the Company, it will promptly appoint in accordance with applicable Law a registered agent for service of process in the State of Delaware, and induce Guarantor shall maintain such registered agent as its agent for service of process in the other Guaranteed Creditors State of Delaware without interruption until the Effective Time.
(b) All payments pursuant to enter into Interest Rate Protection Agreements and Other Hedging Agreements and this Section 8.15 shall be made in recognition lawful money of the direct benefits United States, in immediately available funds. Guarantor promises and undertakes to be received by make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of Guarantor of any kind.
(c) The guarantee set forth in Section 8.15(a) (the Parent“Guarantee”) is an absolute, Arlington unconditional and GMSC from the continuation and conversion continuing guarantee of the Loans full and the entering into of such Interest Rate Protection Agreements punctual payment and Other Hedging Agreements, each performance by Parent and Merger Sub of the ParentGuaranteed Obligations and not of collection. Should Parent or Merger Sub default in the payment or performance of any of the Guaranteed Obligations, Arlington Guarantor’s obligations hereunder shall become immediately due and GMSC hereby payable to the Company or, to the extent such obligations become due and payable after the Effective Time, to the former holders of Certificates, Book-Entry Shares, Company Options and Full Value Awards, or to the Indemnified Persons. Claims hereunder may be made on one or more occasions. If any payment in respect of any Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, Guarantor shall remain liable hereunder with respect to such Guaranteed Obligation as if such payment had not been made.
(d) Guarantor agrees that the Guaranteed Obligations shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Company to assert any claim or demand or to enforce any right or remedy against Parent or Merger Sub; (ii) any change in the time, place or manner of payment of the Guaranteed Obligations or rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of this Agreement made in accordance with the terms of this Agreement or any agreement evidencing, securing or otherwise executed in connection with any of the Guaranteed Obligations; (iii) the addition, substitution or release of any Person interested in the Transactions; (iv) any change in the corporate existence, structure or ownership of Parent or Merger Sub; (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or Merger Sub or their assets; (vi) the adequacy of any means the Company may have of obtaining payment related to the Guaranteed Obligations; or (vii) the existence of any claim, set-off or other right which Parent or Merger Sub may have at any time against the Company (other than satisfaction of the Guaranteed Obligations or rights of Merger Sub pursuant to this Agreement), whether in connection with the Guaranteed Creditors as follows: Each Obligations or otherwise. Guarantor waives promptness, diligence, notice of the Parentacceptance of the Guarantee and of the Guaranteed Obligations, Arlington presentment, demand for payment, notice of non-performance, default, dishonor and GMSC hereby unconditionally protest, notice of the Guaranteed Obligations incurred and irrevocably guarantees all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other Person interested in the Transactions, and all suretyship defenses generally (other than fraud by the Company), defenses to the payment of the Guaranteed Obligations that are available to Parent or Merger Sub under this Agreement and defenses available to Guarantor under the Guarantee. Guarantor acknowledges that it has received and will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Section 8.15 are knowingly made in contemplation of such benefits.
(e) No failure on the part of the Company to exercise, and no delay in exercising, any right, remedy or power pursuant to this Section 8.15 shall operate as primary obligor a waiver thereof, nor shall any single or partial exercise by the Company of any right, remedy or power pursuant to this Section 8.15 preclude any other or future exercise of any right, remedy or power pursuant to this Section 8.15. Each and every right, remedy and power granted to the Company pursuant to this Section 8.15 or allowed it by Law or agreement with respect to this Section 8.15 shall be cumulative and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, exclusive of any other, and all of may be exercised by the Obligations of the Borrower Company at any time or from time to the Guaranteed Creditorstime. If The Company shall not have any obligation to proceed at any time or in any manner against, exhaust any or all of the Company’s rights against Parent, Merger Sub or any other Person liable for any Guaranteed Obligations prior to proceeding against Guarantor hereunder or resort to any security or other means of collecting payment. This Guarantee may only be amended by a writing signed and delivered by Guarantor and the Borrower Company. Guarantor hereby covenants and agrees that it shall not institute, and shall cause its respective Affiliates not to institute, any Action asserting that the Guarantee is illegal, invalid or unenforceable in accordance with its terms, subject to the Guaranteed Creditors becomes due effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors’ rights generally, and payable hereunder, each of the Parent, Arlington general equitable principles (whether considered an Action in equity or at law).
(f) Guarantor hereby represents and GMSC, unconditionally and irrevocably, promises to pay such indebtedness warrants to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any Company and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of covenants that: (i) the execution, delivery and performance of this Agreement have been duly authorized by all necessary action, and no other proceedings on the part of Guarantor or its stockholders are necessary to authorize this Agreement, and do not contravene any judgment, decree or order provision of any court or administrative body having jurisdiction over such payee Guarantor’s organizational documents or any of Law or contractual restriction binding on Guarantor or its property or assets; (ii) any settlement or compromise this Agreement constitutes a legal, valid and binding obligation of Guarantor enforceable against Guarantor in accordance with its terms, subject to the effect of any such claim effected by such payee with any such claimant applicable bankruptcy, insolvency (including the Borrowerall Laws relating to fraudulent transfers), then reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in such eventan Action at law or in equity), each of (iii) nothing in this Agreement will terminate its obligations under the Parent, Arlington Confidentiality Agreement and GMSC agrees that (iv) Guarantor will not issue any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty press release or other instrument evidencing communication in contravention of Section 5.06.
(g) Nothing in this Section 8.15 shall waive any liability defenses, counterclaims or rights of the Borrower, and the Parent, Arlington setoff that Parent or GMSC, as the case Merger Sub may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid have under this Agreement or recovered to the same extent as if such amount had never originally been received by any such payeeapplicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Concur Technologies Inc), Merger Agreement (Concur Technologies Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement and Subsidiaries Guaranty (Leap Wireless International Inc), Credit Agreement (Leap Wireless International Inc)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection any Secured Cash Management Agreement and any Secured Hedge Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to the Borrower, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Guarantied Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandSecured Parties, together with any and all reasonable documented out-of-pocket expenses which (including Lender Expenses) that may be incurred by the Administrative Agent and the other Guaranteed Creditors any Secured Party in demanding, enforcing, or collecting any of the Guarantied Obligations (including the enforcement of any collateral for such Guarantied Obligations). If a claim is ever made upon any Guaranteed Creditor Secured Party for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of the aforesaid payees Secured Party repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower)property, then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Guarantied Obligations to Agent, for the benefit of the Secured Parties, whether or not due or payable by any Credit Party upon the occurrence of any of the events specified in Section 8.1(i) or (j) of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Secured Parties, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, or any other Secured Party on account of the Guarantied Obligations which Agent or such other Secured Party repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent or any other Secured Party or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Guarantied Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Lender or any other Secured Party in existence on the date of such revocation, (iv) no payment by any Guarantor, the Borrower, or from any other source, prior to the date of Agent's receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by the Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Secured Parties) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent and the other Secured Parties, without notice or demand, and without affecting or impairing its liability hereunder, from time to time to, but in each case only in accordance with the terms of the Credit Agreement and other Loan Documents:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Guarantied Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Guarantied Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Guarantied Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, Guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Guarantied Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent or any other Secured Party regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Secured Cash Management Agreement, any Secured Hedge Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Secured Cash Management Agreement, any Secured Hedge Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent or any other Secured Party to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Guarantied Obligations made or created in reliance upon the professed exercise of such powers shall be Guaranteed hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any Lender or any other Secured Party with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto against Borrower or another Guarantor;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent or any of the other Secured Parties;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Lender or any other Secured Party including any defense based upon an impairment or elimination of such Guarantor's rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Kronos Worldwide Inc), Guaranty and Security Agreement (Kronos Worldwide Inc)
Guaranty. In order to induce the Administrative Agents, the Collateral Agent, the Collateral Agent Issuing Banks and the Lenders Banks to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and or Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Parent from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Parent hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Parent hereby unconditionally and irrevocably guarantees guaranties as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, Parent unconditionally and irrevocably, irrevocably promises to pay such indebtedness to the Administrative Agent Agents and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent Agents and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of event the Parent, Arlington and GMSC Parent agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Parent Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Parent shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Hq Global Holdings Inc), Credit Agreement (Frontline Capital Group)
Guaranty. In order to induce the Administrative Agent(a) Guarantors jointly and severally irrevocably and unconditionally guaranty, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor obligors and not merely as suretysureties, the due and punctual payment in full and prompt payment of all Guarantied Obligations (as hereinafter defined) when the same shall become due, whether upon at stated maturity, acceleration by acceleration, demand or otherwise, otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code). The term “Guarantied Obligations” means any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any Company and all reasonable documented out-of-pocket expenses which may be payment obligations of Company or the applicable Subsidiary of Company under Lender Swap Agreements, now or hereafter made, incurred by or created, whether absolute or contingent, liquidated or unliquidated, whether due or not due, and however arising under or in connection with the Administrative Agent Credit Agreement, the Lender Swap Agreements, this Guaranty and the other Guaranteed Creditors in collecting any Loan Documents, including those arising under successive borrowing transactions under the Credit Agreement which shall either continue such obligations of Company or such Subsidiary of Company or from time to time renew them after they have been satisfied. Each Guarantor acknowledges that a portion of the ObligationsLoans may be advanced to it, that Letters of Credit may be issued for the benefit of its business and that the Guarantied Obligations are being incurred for and will inure to its benefit. If a claim is ever made upon Any interest on any Guaranteed Creditor for repayment or recovery portion of the Guarantied Obligations that accrues after the commencement of any amount proceeding, voluntary or amounts received in payment involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Company (or, if interest on account of any portion of the Guarantied Obligations and any ceases to accrue by operation of the aforesaid payees repays all or part of said amount law by reason of (ithe commencement of said proceeding, such interest as would have accrued on such portion of the Guarantied Obligations if said proceeding had not been commenced) shall be included in the Guarantied Obligations because it is the intention of each Guarantor and Guarantied Party that the Guarantied Obligations should be determined without regard to any judgment, decree rule of law or order that may relieve Company of any court or administrative body having jurisdiction over portion of such payee Guarantied Obligations. In the event that all or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each portion of the ParentGuarantied Obligations is paid by Company, Arlington the obligations of each Guarantor hereunder shall continue and GMSC agrees that any such judgment, decree, order, settlement remain in full force and effect or compromise shall be binding upon the Parent, Arlington or GMSCreinstated, as the case may be, notwithstanding in the event that all or any revocation part of such payment(s) is rescinded or recovered directly or indirectly from Guarantied Party or any other Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments that are so rescinded or recovered shall constitute Guarantied Obligations. Subject to the other provisions of this Holdings Guaranty or other instrument evidencing Section 1, upon the failure of Company to pay any liability of the Borrower, Guarantied Obligations when and the Parent, Arlington or GMSC, as the case may besame shall become due, shall both each Guarantor will upon demand pay, or cause to be and remain liable paid, in cash, to the aforesaid payees hereunder Guarantied Party for the ratable benefit of Beneficiaries, an amount so repaid or recovered equal to the same extent as if such amount had never originally been received by any such payeeamounts that have become due.
Appears in 2 contracts
Sources: Subsidiary Guaranty (Hexcel Corp /De/), Subsidiary Guaranty (Hexcel Corp /De/)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Arranger and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington and GMSC Guarantors hereby agrees with the Guaranteed Creditors Financing Parties as follows: Each of the Parenteach Guarantor hereby unconditionally, Arlington absolutely and GMSC hereby unconditionally irrevocably, jointly and irrevocably severally, guarantees as primary obligor obligors and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsObligations. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the ParentGuarantor, Arlington and GMSCunconditionally, unconditionally absolutely and irrevocably, jointly and severally, promises to pay such indebtedness Guaranteed Obligations to the Administrative Agent and/or the other Guaranteed Creditors, or orderFinancing Parties, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors Financing Parties in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor Financing Party for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower)Property, then and in such event, event each of the Parent, Arlington and GMSC Guarantor agrees that any such judgment, decree, order, settlement decree or compromise order shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain jointly and severally liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee. For purposes of this Guaranty, each Guarantor expressly and irrevocably waives any order, excision and division benefits they may have under any applicable jurisdiction.
Appears in 2 contracts
Sources: Credit Agreement (Nii Holdings Inc), Credit Agreement (Nii Holdings Inc)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans Revolving Loans, the issuance of the Letters of Credit, and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group and the Bank Product Providers, together with any and all reasonable documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group and the Bank Product Providers, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the Guarantied Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Guarantied Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by Borrowers or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group and the Bank Product Providers) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Guarantied Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Guarantied Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Guarantied Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Guarantied Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement any Loan Document (other than Section 2 of this Agreement), any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group or any Bank Product Provider with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 2 contracts
Sources: Guaranty and Security Agreement, Guaranty and Security Agreement (ModusLink Global Solutions Inc)
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereundermake the Loans, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the ParentGuarantors hereby each absolutely, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantee, as primary obligor obligors and not merely as suretysureties, the full and prompt punctual payment when due, whether upon maturityat stated maturity or earlier, acceleration by reason of acceleration, mandatory prepayment or otherwiseotherwise in accordance herewith or any other Loan Document, of any and all of the Obligations of the Borrower under this Agreement (such Obligations, the “Guarantied Obligations”), whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, and whether enforceable or unenforceable as against any Borrower, now or hereafter existing, or due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under any Bankruptcy Law, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This guaranty constitutes a guaranty of payment and not of collection.
(b) Each Guarantor further agrees that, if any payment made by the Borrower or any other person and applied to the Guaranteed Creditors. If Guarantied Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or all of the Obligations of the Borrower preferential or otherwise required to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, be refunded or order, on demand, together with repaid by any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee Lender or any other holder of its property or Guarantied Obligations (iithe “Guarantied Parties”) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of to the Borrower, and its estate, trustee, receiver or any other party, including the ParentGuarantors, Arlington under any Bankruptcy Law, state or GMSCfederal law, as common law or equitable cause, then, to the case may beextent of such payment or repayment, each Guarantor’s liability under this Guaranty shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent in full force and effect, as fully as if such amount payment had never originally been received by any made or, if prior thereto this Guaranty shall have been cancelled or surrendered, the Guaranty shall be reinstated in full force and effect, and such payeeprior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of each Guarantor in respect of the amount of such payment.
Appears in 2 contracts
Sources: Credit Agreement (FMC Corp), Credit Agreement (FMC Corp)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Arrangers and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington and GMSC Guarantors hereby agrees with the Guaranteed Creditors Financing Parties as follows: Each of the Parenteach Guarantor hereby unconditionally, Arlington absolutely and GMSC hereby unconditionally irrevocably, jointly and irrevocably severally, guarantees as primary obligor obligors and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsObligations. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the ParentGuarantor, Arlington and GMSCunconditionally, unconditionally absolutely and irrevocably, jointly and severally, promises to pay such indebtedness Guaranteed Obligations to the Administrative Agent and/or the other Guaranteed Creditors, or orderFinancing Parties, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors Financing Parties in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor Financing Party for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower)Property, then and in such event, event each of the Parent, Arlington and GMSC Guarantor agrees that any such judgment, decree, order, settlement decree or compromise order shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain jointly and severally liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee. For purposes of this Guaranty, each Guarantor expressly and irrevocably waives any order, excusion and division benefits they may have under any applicable jurisdiction.
Appears in 2 contracts
Sources: Credit Agreement (Nii Holdings Inc), Credit Agreement (Nii Holdings Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agent, the Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC each Credit Agreement Party from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Credit Agreement Party hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC each Credit Agreement Party hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCCredit Agreement Party, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Guaranteed Party), then and in such event, event each of the Parent, Arlington and GMSC Credit Agreement Party agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may besuch Credit Agreement Party, notwithstanding any revocation of this Holdings Credit Agreement Party Guaranty or other instrument evidencing any liability of the Borrowerany other Guaranteed Party, and the Parent, Arlington or GMSC, as the case may be, such Credit Agreement Party shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Town Sports International Holdings Inc), Credit Agreement (Town Sports International Holdings Inc)
Guaranty. In order The Guarantor hereby unconditionally guarantees to induce the Administrative AgentHolder of each Security Outstanding from time to time, and to the Trustee on behalf of such Holder, the Collateral Agent due and punctual payment of the Lenders to enter into this Agreement principal of and to extend credit hereunderpremium, if any, and induce interest, if any, on such Security when and as the other Guaranteed Creditors to enter into Interest Rate Protection Agreements same shall become due and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when duepayable, whether upon maturityat the Stated Maturity, acceleration by declaration of acceleration, call for redemption, or otherwise, in accordance with the terms of such Security and of this Indenture. In case of the failure of the Company punctually to make any such payment, the Guarantor shall cause such payment to be made punctually when and as the same shall become due and payable, as aforesaid, as if such payment were made by the Company. The obligations of the Guarantor hereunder shall be absolute and unconditional irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or this Indenture, any failure to enforce the provisions of such Security or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however, that notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or change any redemption provisions thereof (including any change to increase any premium payable upon redemption thereof), or change the Stated Maturity thereof, or increase the principal amount of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes Discount Security that would be due and payable hereunder, each upon a declaration of acceleration of the Parentmaturity thereof pursuant to Article Seven of this Indenture. The Guarantor hereby waives the benefits of diligence, Arlington and GMSCpresentment, unconditionally and irrevocablydemand for payment, promises to pay such indebtedness to any requirement that the Administrative Agent and/or the other Guaranteed Creditors, Trustee or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If Holders exhaust any right or take any action against the Company or any other Person, filing of claims with a claim is ever made upon court in the event of insolvency or bankruptcy of the Company, any Guaranteed Creditor for repayment right to require a proceeding first against the Company, protest or recovery notice with respect to any Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guaranty will not be discharged in respect of any amount or amounts received Security except by complete performance of the obligations contained in such Security and in this Guaranty. This Guaranty shall constitute a guaranty of payment and not of collection. The Guarantor hereby agrees that, in the event of a default in payment of principal of, or premium, if any, or interest, if any, on, any Security, whether at its Stated Maturity, by declaration of acceleration, call for redemption, or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce this Guaranty without first proceeding against the Company. The obligations of the Guarantor hereunder with respect to any Security shall be continuing and irrevocable until the date upon which the entire principal of and premium, if any, and interest, if any, on such Security have been, or have been deemed pursuant to the provisions of Article Six to have been, paid in full or otherwise discharged. The Guarantor shall be subrogated to all rights of the Holders of the Securities upon which its Guaranty is endorsed against the Company in respect of any amounts paid by the Guarantor on account of such Securities pursuant to the provisions of its Guaranty or this Indenture; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of and premium, if any, and interest, if any, on all Securities issued hereunder shall have been paid in full. This Guaranty shall remain in full force and effect and continue notwithstanding any petition filed by or against the Company for liquidation or reorganization, the Company becoming insolvent or making an assignment for the benefit of creditors or a receiver or trustee being appointed for all or any significant part of the Obligations Company's assets, and any of shall, to the aforesaid payees repays all fullest extent permitted by law, continue to be effective or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSCreinstated, as the case may be, notwithstanding if at any revocation time payment of this Holdings Guaranty any Security is, pursuant to applicable law, rescinded or other instrument evidencing reduced in amount, or must otherwise be restored or returned by any liability Holder of such Security, whether as a "voidable preference", "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment in respect of any Security, or any part thereof, is rescinded, reduced, restored or returned, such Security shall, to the fullest extent permitted by law, be reinstated and shall be deemed paid only to the extent of the Borroweramount paid and not so rescinded, and the Parentreduced, Arlington restored or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeereturned.
Appears in 2 contracts
Sources: Indenture (Dqe Capital Corp), Indenture (Dqe Capital Corp)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements (i) For value received and in recognition consideration of the direct benefits any loan, advance or financial accommodation of any kind whatsoever heretofore, now or hereafter made, given or granted to be received any Borrower by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLenders, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby Guarantor unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturityat maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If Obligations (including, without limitation, interest accruing following the filing of a bankruptcy petition by or against any applicable Borrower, at the applicable rate specified in the Credit Agreement, whether or all not such interest is allowed as a claim in bankruptcy).
(ii) At any time after the occurrence of the Obligations an Event of the Borrower to the Guaranteed Creditors becomes due and payable hereunderDefault, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to Guarantor shall pay such indebtedness to the Administrative Agent and/or Agent, for the other ratable benefit of the Agents and the Lenders, on demand and in immediately available funds, the full amount of the Guaranteed CreditorsObligations. Each Guarantor further agrees to pay and reimburse the Agents and the Lenders for, on demand and in immediately available funds, (a) all reasonable fees, costs and expenses (including, without limitation, all court costs and reasonable attorneys' fees, costs and expenses) paid or incurred by such Person in: (1) endeavoring to collect all or any part of the Guaranteed Obligations owing to such Person from, or orderin prosecuting any action against, the applicable Borrower or Borrowers relating to the Credit Agreement, this Guaranty or the transactions contemplated thereby; (2) taking any action with respect to any security or collateral securing the Guaranteed Obligations; and (3) preserving, protecting or defending the enforceability of, or enforcing, this Guaranty or the Agents' or the Lenders' rights hereunder (all such costs and expenses are hereinafter referred to as the "Expenses") and (b) interest on demandthe Expenses, from the date of demand under this Guaranty until paid in full at the per annum rate of interest described in Section 4.01(d) of the Credit Agreement. Each Guarantor hereby agrees that this Guaranty is an absolute guaranty of payment and is not a guaranty of collection.
(iii) Notwithstanding anything contained in this Guaranty to the contrary, the amount guaranteed by each Guarantor hereunder shall be limited to an aggregate amount which, together with any and all reasonable documented out-of-pocket expenses which may be incurred other amounts owing by such Guarantor to the Administrative Agent Agents and the other Guaranteed Creditors in collecting any Lenders, is equal to the largest amount that would not be subject to avoidance under Section 548 of Title 11 of the ObligationsUnited States Code (11 U.S.C. ▇▇.▇▇. If a claim is ever made upon 101 et seq.) (the "Bankruptcy Code") or any Guaranteed Creditor for repayment or recovery applicable provisions of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeecomparable state law.
Appears in 2 contracts
Sources: Credit Agreement (General Inspection Laboratories Inc), Credit Agreement (General Inspection Laboratories Inc)
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of make the Loans and the entering into Issuers to issue Letters of such Interest Rate Protection Agreements and Other Hedging AgreementsCredit, each of the ParentGuarantor hereby absolutely, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, jointly with the other Guarantors and severally, as primary obligor and not merely as surety, the full and prompt punctual payment when due and in the currency due, whether upon maturityat stated maturity or earlier, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Financing Agreement, of all the Obligations (other than, in the case of each Borrower, with respect to its own Obligations under the Financing Agreements), whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Borrowers, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under the Bankruptcy Code, or any applicable provisions of comparable state or foreign law, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.
(b) Each Guarantor further agrees that, if (i) any judgment, decree or order of payment made by any court or administrative body having jurisdiction over such payee Borrower or any of its property other Person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (ii) the proceeds of Collateral are required to be returned by any settlement Guarantied Party to any Borrower, its estate, trustee, receiver or compromise any other party, including any Guarantor, under any bankruptcy law, equitable cause or any other Requirement of Law, then, to the extent of such payment or repayment, any such Guarantor’s liability hereunder (and any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other Collateral securing such Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such claim effected by such payee with any such claimant (including the Borrower), then and Guarantor in such event, each respect of the Parent, Arlington and GMSC agrees that amount of such payment (or any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty Lien or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if Collateral securing such amount had never originally been received by any such payeeobligation).
Appears in 2 contracts
Sources: Guaranty, Guaranty (J Crew Group Inc)
Guaranty. In order to induce the Administrative AgentEach Subsidiary Guarantor hereby absolutely, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, jointly and severally with each other Subsidiary Guarantor and the Parent Guarantor, as a primary obligor and not merely as a surety, to each Holder and its successors and permitted assigns (a) the full and prompt punctual payment when due, whether upon at stated maturity, by acceleration or otherwise, of the principal of and Make-Whole Amount and interest on (including, without limitation, interest, whether or not an allowable claim, accruing after the date of filing of any petition in bankruptcy, or the commencement of any bankruptcy, insolvency or similar proceeding relating to the Issuer) the Notes and all other amounts owed or to be owing by the Issuer which becomes due under the terms and provisions of the Financing Agreements, now or hereafter existing under the Financing Agreements whether for principal, Make-Whole Amount or interest (including, without limitation, interest, whether or not an allowable claim, accruing after the date of filing of any petition in bankruptcy, or the commencement of any bankruptcy, insolvency or similar proceeding relating to the Issuer), (b) the full and prompt performance and observance by the Issuer of each and all of the Obligations obligations, covenants and agreements required to be performed or owed by the Issuer under the terms of the Borrower to Notes and the Guaranteed Creditors. If Note Purchase Agreement and (c) the full and prompt payment, upon demand by any Holder of all costs and expenses, legal or all otherwise (including reasonable attorneys’ fees) and such expenses, if any, as shall have been expended or incurred in the protection or enforcement of any right or privilege under the Notes or the Note Purchase Agreement or in the protection or enforcement of any rights, privileges or liabilities under this Guarantee or in any consultation or action in connection therewith or herewith and in each and every case irrespective of the Obligations validity, regularity, or enforcement of any of the Borrower to Notes or the Guaranteed Creditors becomes due and payable hereunder, each Note Purchase Agreement or any of the Parentterms thereof or of any other like circumstance or circumstances (all such obligations being the “Obligations”), Arlington and GMSC, unconditionally and irrevocably, promises agrees to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket fees and expenses which may be incurred by each Holder in enforcing this Guarantee. Notwithstanding the Administrative Agent and foregoing, the other Guaranteed Creditors in collecting right of recovery against each Subsidiary Guarantor under this Guarantee is limited to the extent it is judicially determined with respect to any Subsidiary Guarantor that entering into this Guarantee would violate Section 548 of the Obligations. If a claim is ever made upon Bankruptcy Code or any Guaranteed Creditor for repayment or recovery comparable provisions of any state law, in which case such Subsidiary Guarantor shall be liable under this Guarantee only for amounts aggregating up to the largest amount that would not render such Subsidiary Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code or amounts received in payment or on account any comparable provisions of any state law. Notwithstanding any stay, injunction or other prohibition preventing such action against the Issuer, if for any reason whatsoever the Issuer shall fail or be unable to duly, punctually and fully (in the case of the Obligations payment of Obligations) pay such amounts as and any when the same shall become due and (in the case of the aforesaid payees repays all payment of Obligations) payable, whether or part not such failure or inability shall constitute an “Event of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such eventDefault”, each Subsidiary Guarantor will forthwith (in the case of the Parentpayment of Obligations) pay or cause to be paid such amounts to the holders, Arlington and GMSC agrees that any in lawful money of the United States of America, at the place specified in Section 14 of the Note Purchase Agreement, or pay such judgmentObligations or cause such Obligations to be paid, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as (in the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, payment of Obligations) together with interest (in the amounts and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the extent required under such Notes) on any amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeedue and owing.
Appears in 2 contracts
Sources: Note Purchase and Guarantee Agreement (Physicians Realty Trust), Note Purchase and Guarantee Agreement (Physicians Realty Trust)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Revolving Loans and the Term Loan, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrower, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group and the Bank Product Providers, together with any and all reasonable documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerBorrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group and the Bank Product Providers, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group and the Bank Product Providers) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be Guarantied hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group or any Bank Product Provider with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Connecture Inc), Guaranty and Security Agreement (Connecture Inc)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans Revolving Loans, the issuance of the Letters of Credit, and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group and the Bank Product Providers, together with any and all reasonable documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any reasonable settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group and the Bank Product Providers, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group and the Bank Product Providers) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be Guaranteed hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group or any Bank Product Provider with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (School Specialty Inc), Guaranty and Security Agreement (School Specialty Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Parent from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Parent hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC The Parent hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC Parent agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, Parent notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Parent shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (General Maritime Corp / MI), Credit Agreement (General Maritime Corp / MI)
Guaranty. In order to induce the Administrative AgentEach Guarantor irrevocably and unconditionally guarantees, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce jointly with the other Guaranteed Creditors to enter into Interest Rate Protection Agreements Guarantors and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parentseverally, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety, the full due and prompt punctual payment when due, due (whether upon at the stated maturity, by required prepayment, by acceleration or otherwise) and performance by each of the Loan Parties of all Obligations (collectively, the “Guaranteed Obligations”), including all such Guaranteed Obligations which shall become due but for the operation of the Debtor Relief Laws. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon this Guaranty notwithstanding any extension or renewal of any and all of the Obligations of the Borrower to the Guaranteed CreditorsObligation. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to the Administrative Agent and/or Agent, for the other Guaranteed Creditors, or order, on demandbenefit of the Credit Parties, together with any and all reasonable documented out-of-pocket expenses which that may be incurred by the Administrative Agent and the or any other Guaranteed Creditors Credit Party in demanding, enforcing, or collecting any of the ObligationsGuaranteed Obligations (including the enforcement of any collateral for such Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon any Guaranteed Creditor Agent or any other Credit Party for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of the aforesaid payees Agent or any other Credit Party repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Loan Party, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Term Loan Agreement (Coldwater Creek Inc), Credit Agreement (Coldwater Creek Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agent, the Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements, Qualified Secured Hedging Agreements and Other Hedging Qualified Secured Cash Management Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements, Qualified Secured Hedging Agreements and Other Hedging Qualified Secured Cash Management Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerBorrowers and any other Guaranteed Party), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Guaranteed Party, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Abl Credit Agreement (Affinia Group Holdings Inc.), Abl Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent (a) Each Loan Guarantor and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the any of its successors or assigns (other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC than those that have delivered a separate Loan Guaranty) hereby agrees with the Guaranteed Creditors as follows: Each of the Parentthat it is jointly and severally liable for, Arlington and GMSC hereby unconditionally and irrevocably guarantees and, as primary obligor and not merely as surety, absolutely and unconditionally guarantees, to the full extent permissible under the laws of the country in which such Loan Guarantor is located or organized, to the Lenders, the Agents and the Issuing Banks (collectively, the “Guaranteed Parties”) the prompt payment when due, whether upon at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by the Agents, the Issuing Banks and the Lenders in endeavoring to collect all or any part of the Secured Obligations from, or in prosecuting any action against, any Borrower, any other Loan Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and expenses, together with the Secured Obligations, collectively the “Guaranteed Obligations”). Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of any and all domestic or foreign branch or Affiliate of any Lender that extended any portion of the Guaranteed Obligations. Notwithstanding anything in the foregoing to the contrary, in no event shall the Guarantee Obligations of any European Loan Party include the Obligations of the Borrower to the Guaranteed CreditorsUS Loan Parties. If any payment by a Loan Guarantor or all any discharge given by a Guaranteed Party (whether in respect of the Obligations obligations of any Loan Guarantor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: (a) the liability of each Loan Guarantor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and (b) each Guaranteed Party shall be entitled to recover the value or amount of that security or payment from each Loan Guarantor, as if the payment, discharge, avoidance or reduction had not occurred. The obligations of each Loan Guarantor under this Article X will not be affected by an act, omission, matter or thing which, but for this Article X, would reduce, release or prejudice any of its obligations under this Article X (without limitation and whether or not known to it or any Guaranteed Party) including: (a) any time, waiver or consent granted to, or composition with, any Loan Guarantor or other person; (b) the release of any other Loan Guarantor or any other person under the terms of any composition or arrangement with any creditor of any member of the Borrower European Group; (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Loan Guarantor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; (d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Loan Guarantor or any other person; (e) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature) or replacement of a Loan Document or any other document or security; (f) any unenforceability, illegality or invalidity of any obligation of any person under any Loan Document or any other document or security; or (g) any insolvency or similar proceedings. Without prejudice to the Guaranteed Creditors becomes due and payable hereundergenerality of the above, each Loan Guarantor expressly confirms, as permissible under applicable law, that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises or to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of Loan Documents and/or any amount or amounts received in payment or on account of made available under any of the Obligations and Loan Documents for the purposes of or in connection with any of the aforesaid payees repays all following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or part extension of said the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing. Each Loan Guarantor waives any right it may have of first requiring any Guaranteed Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Loan Guarantor under this Article X. This waiver applies irrespective of any law or any provision of a Loan Document to the contrary. This guarantee is in addition to and is not in any way prejudiced by reason any other guarantee or security now or subsequently held by any Guaranteed Party. This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of Section 151 of the UK Companies ▇▇▇ ▇▇▇▇, or section 60 of the Irish Companies ▇▇▇ ▇▇▇▇, or any equivalent and applicable provisions under the laws of the jurisdiction of incorporation of the relevant Loan Guarantor.
(b) Notwithstanding anything to the contrary in the Credit Agreement, the aggregate obligations and liabilities of any entity incorporated under the laws of the Grand Duchy of Luxembourg (a “Luxembourg Guarantor”) with respect to the repayment under a joint and several liability clause of any borrowing, costs or expenses, and the granting of any guarantee, indemnity or security under this Agreement:
(i) shall not include any judgmentpayment which, decree if made, would either constitute a misuse of corporate assets as defined under article 171-1 of the LSC or order amount to prohibited financial assistance as provided in article 49-6 of the LSC; and
(ii) shall be limited to the aggregate of:
(A) any court or administrative body having jurisdiction over sums borrowed by such payee Luxembourg Guarantor or any obligation or liability of its property such Luxembourg Guarantor’s direct or indirect subsidiaries incurred under the Credit Agreement; and
(B) ninety-five percent (95%) of the net assets of such Luxembourg Guarantor, where the net assets means the shareholder’s equity (capitaux propres, as referred to in article 34 of the Luxembourg law of December 19, 2002 on the commercial register and annual accounts) of such Luxembourg Guarantor as (i) shown in the latest financial statements (comptes annuels) available at the date of the relevant payment hereunder and approved by the shareholders of such Luxembourg Guarantor or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each existing as of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeClosing Date.
Appears in 2 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Guaranty. In order Subject to induce Section 2.21 of the Credit Agreement, each Guarantor hereby guarantees to the Lenders and the Administrative Agent the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise) of all of the obligations of the Borrower under the Credit Agreement and the other Loan Documents (including, but not limited to, the principal of the Loans advanced to the Borrower, all Reimbursement Obligations of the Borrower in respect of Letters of Credit, and all interest, fees, expenses, indemnities and other amounts payable by the Borrower under the Credit Agreement), including all such which would become due but for the operation of the automatic stay pursuant to §362(a) of the Federal Bankruptcy Code (Title 11, United States Code) and the operation of §502(b) of the Federal Bankruptcy Code (collectively, the “Guaranteed Obligations”). This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all such Guaranteed Obligations, and not of their collectibility only and is in no way conditioned upon any requirement that the Administrative Agent or any Lender first attempt to collect any of the Guaranteed Obligations from the Borrower or resort to any other means of obtaining payment. Should an Event of Default occur with respect to the payment or performance of any such Guaranteed Obligations of the Borrower, the obligations of the Guarantors under this Guaranty with respect to such Guaranteed Obligations in default shall, upon demand by the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes become immediately due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or Agent, for the other Guaranteed Creditorsbenefit of the Lenders and the Administrative Agent, without demand or ordernotice of any nature, on demand, together with all of which are expressly waived by each Guarantor. Payments by any and all reasonable documented out-of-pocket expenses which Guarantor in respect of this Guaranty may be incurred required by the Administrative Agent on any number of occasions. All payments by any Guarantor in respect of this Guaranty shall be made to the Administrative Agent, in the manner and at the place of payment specified in the Credit Agreement, for the account of the Lenders and the other Guaranteed Creditors in collecting Administrative Agent. Anything contained herein to the contrary notwithstanding, the obligations of each Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under §548 of the Obligations. If a claim is ever made upon Federal Bankruptcy Code or any Guaranteed Creditor for repayment or recovery comparable provisions of any amount similar federal or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeestate Law.
Appears in 2 contracts
Sources: Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD)
Guaranty. In order The undersigned, for value received, unconditionally and absolutely guarantee(s) to induce the Administrative AgentComerica Bank - California ("Bank") a California banking corporation, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunderthe Bank's successors and assigns, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon by stated maturity, demand, acceleration or otherwise, of all existing and future indebtedness to the Bank of D▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Borrower") or any successor in interest, including without limit any debtor-in-possession or trustee in bankruptcy which succeeds to the interest of this party or person (jointly and severally the "Borrower"), however this indebtedness has been or may be incurred or evidenced, whether absolute or contingent direct or indirect, voluntary or involuntary, liquidated or unliquidated, joint or several, and whether or not known to the undersigned at the time of this Guaranty or at the time any future indebtedness is incurred (the "Indebtedness"). The indebtedness guaranteed includes without limit: (a) any and all of the Obligations direct indebtedness of the Borrower to the Guaranteed CreditorsBank, including indebtedness evidenced by any and all promissory notes; (b) any and all obligations or liabilities of the Borrower to the Bank arising under any guaranty where the Borrower has guaranteed the payment of indebtedness owing to the Bank from a third party; (c) any and all obligations or liabilities of the Borrower to the Bank arising from applications or agreements for the issuance of letters of credit; (d) any and all obligations or liabilities of the Borrower to the Bank arising out of any other agreement by the Borrower including without limit any agreement to indemnify the Bank for environmental liability or to clean up hazardous waste; (e) any and all indebtedness, obligations or liabilities for which the Borrower would otherwise be liable to the Bank were it not for the invalidity, irregularity or unenforceability of them by reason of any bankruptcy, insolvency or other law or order of any kind, or for any other reason, including without limit liability for interest and attorneys' fees on, or in connection with, any of the indebtedness from and after the filing by or against the Borrower of a bankruptcy petition whether an involuntary or voluntary bankruptcy case, including, without limitation, all attorneys' fees and costs incurred in connection with motions for relief from stay, cash collateral motions, nondischargeability motions, preference liability motions, fraudulent conveyance liability motions, fraudulent transfer liability motions and all other motions brought by Borrower, Guarantor, Bank or third parties in any way relating to Bank's rights with respect to such Borrower, Guarantor, or third party and/or affecting any collateral securing any obligation owed to Bank by Borrower, Guarantor, or any third party, probate proceedings, on appeal or otherwise; (f) any and all amendments, modifications, renewals and/or extensions of any of the above, including without limit amendments, modifications, renewals and/or extensions which are evidenced by new or additional instruments, documents or agreements; and (g) all costs of collecting indebtedness, including without limit reasonable attorneys' fees and costs. If The undersigned value(s) notice of acceptance of this Guaranty and presentment, demand, protest, notice of protest, dishonor, notice of dishonor, notice of default, notice of intent to accelerate or demand payment of any indebtedness, and diligence in collecting any indebtedness, and agree(s) that the Bank may modify the terms of any indebtedness, compromise, extend, increase, accelerate, renew or forbear to enforce payment of any or all indebtedness, or permit the Borrower to incur additional indebtedness, all without notice to the undersigned and without affecting in any manner the unconditional obligation of the undersigned under this Guaranty. The undersigned further waive(s) any and all other notices to which the undersigned might otherwise be entitled. The undersigned acknowledge(s) and agree(s) that the liabilities created by this Guaranty are direct and are not conditioned upon pursuit by the Bank of any remedy the Bank may have against the Borrower or any other person or any security. No invalidity, irregularity or unenforceability of any part or all of the indebtedness or any documents evidencing the same, by reason of any bankruptcy, insolvency or other law or order of any kind or for any other reason, and no defense or setoff available at any time to the Borrower, shall impair, affect or be a defense or setoff to the obligations of the undersigned under this Guaranty. The undersigned deliver(s) this Guaranty based solely on the undersigned's independent investigation of the financial condition of the Borrower and is (are) not relying on any information furnished by the Bank. The undersigned assume(s) full responsibility for obtaining any further information concerning the Borrower's financial condition, the status of the indebtedness or any other matter which the undersigned may deem necessary or appropriate from time to time. The undersigned waive(s) any duty on the part of the Bank, and agree(s) that it is not relying upon nor expecting the Bank to disclose to the undersigned any fact now or later known by the Bank whether relating to the operations or condition of the Borrower, the existence, liabilities or financial condition of any co-guarantor of the indebtedness, the occurrence of any default with respect to the indebtedness, or otherwise, notwithstanding any effect these facts may have upon the undersigned's risk. Under this Guaranty or the undersigned's rights against the Borrower. The Undersigned knowingly accept(s) the full range of risk encompassed in this Guaranty, which risk includes without limit the possibility that the Borrower may incur indebtedness to the Bank after the financial condition of the Borrower, or its ability to pay its debts as they mature, has deteriorated. The undersigned represent(s) and warrant(s) that: (a) the Bank has made no representation to the undersigned as to the creditworthiness of the Borrower; and (b) the undersigned has (have) established adequate means of obtaining from the Borrower on a continuing basis financial and other information pertaining to the Borrower's financial condition. The undersigned agree(s) to keep adequately informed of any facts, events or circumstances which might in any way effect the risks of the undersigned under this Guaranty. The undersigned grant(s) to the Bank a security interest in and the right of setoff as to any and all property of the undersigned now or later in the possession of the Bank. The undersigned subordinate(s) any claim of any nature that the undersigned now or later has (have) against the Borrower to and in favor of all indebtedness and agree(s) not to accept payment or satisfaction of any claim that the undersigned now or later may have against the Borrower without the prior written consent of the Bank. Should any payment, distribution, security, or proceeds, be received by the undersigned upon or with respect to any claim that the undersigned now or may later have against the Borrower, the undersigned shall immediately deliver the same to the Bank in the form received (except for endorsement or assignment by the undersigned where required by the Bank) for application on the indebtedness, whether matured or unmatured, and until delivered the same shall be held in trust by the undersigned as the property of the Bank. The undersigned further assign(s) to the Bank as collateral for the obligations of the undersigned under this Guaranty all claims of any nature that the undersigned now or later has (have) against the Borrower (other than any claim under a deed of trust or mortgage covering real property) with full right on the part of the Bank, in its own name or in the name of the undersigned, to collect and enforce these claims. The undersigned agree(s) that no security now or later held by the Bank for the payment of any indebtedness, whether from the Borrower, any guarantor, or otherwise, and whether in the nature of a security interest, pledge, lien, assignment, setoff, suretyship, guaranty, indemnity, insurance or otherwise, shall affect in any manner the unconditional obligation of the undersigned under this Guaranty, and the Bank, in its sole discretion, without notice to the undersigned, may release, exchange, enforce and otherwise deal with any security without affecting in any manner the unconditional obligation of the undersigned under this Guaranty. The undersigned acknowledges(s) and agree(s) that the Bank has no obligation to acquire or perfect any lien on or security interest in any asset(s), whether realty or personally, to secure payment of the indebtedness, and the undersigned is (are) not relying upon any asset(s) in which the Bank has or may have a lien or security interest for payment of the indebtedness. The undersigned acknowledge(s) that the effectiveness of this Guaranty is not conditioned on any or all of the Obligations indebtedness being guaranteed by anyone else. Until the indebtedness is irrevocably paid in full, the undersigned waive(s) any and all rights to be subrogated to the position of the Bank or to have the benefit of any lien, security interest or other guaranty now or later held by the Bank for the indebtedness or to enforce any remedy which the Bank now or later has against the Borrower or any other person. Until the indebtedness is irrevocably paid in full, the undersigned shall have no right of reimbursement, indemnity, contribution or other right of recourse to or with respect to the Borrower or any other person. The undersigned agree(s) to indemnify and hold harmless the Bank from and against any and all claims, actions, damages, costs and expenses, including without limit reasonable attorneys' fees, incurred by the Bank in connection with the undersigned's exercise of any right at subrogation, contribution, indemnification or recourse with respect to this Guaranty. The Bank has no duty to enforce or protect any rights which the undersigned may have against the Borrower or any other person and the undersigned assume(s) full responsibility for enforcing and protecting these rights. Notwithstanding any provision of the preceding paragraph or anything else in this Guaranty to the contrary, if any of the undersigned is or becomes an "insider" or "affiliate" (as defined in Section 101 of the Federal Bankruptcy Code, as it may be amended) with respect to the Borrower, then that undersigned irrevocably and absolutely waives any and all rights of subrogation, contribution, indemnification, recourse, reimbursement and any similar rights against the Borrower (or any other guarantor) with respect to this Guaranty, whether such rights arise under an express or implied contract or by operation of law. It is the intention of the parties that the undersigned shall not be (or be deemed to be) a "creditor" (as defined in Section 101 of the Federal Bankruptcy Code, as it may be amended) of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each (or any other guarantor) by reason of the Parentexistence of this Guaranty in the event that the Borrower becomes a debtor in any proceeding under the Federal Bankruptcy Code. This waiver is given to induce the Bank to enter into certain written contracts with the Borrower included in the Indebtedness. The undersigned warrant(s) and agree(s) that none of Bank's rights, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, remedies or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may interests shall be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment directly or recovery of any amount or amounts received in payment or on account indirectly impaired because of any of the Obligations undersigned's status as an "insider" or "affiliate" of the Borrower, and undersigned shall take any action, and shall execute any document, which the Bank may request in order to effectuate this warranty to the Bank. If any Indebtedness is guaranteed by two or more guarantors, the obligation of the undersigned shall be several and also joint, each with all and also each with any one or more of the others, and may be enforced at the option of the Bank against each severally, any two or more jointly, or some severally and some jointly. The Bank, in its sole discretion, may release any one or more of the guarantors for any consideration which it deems adequate, and may fail or elect not to prove a claim against the estate of any bankrupt, insolvent, incompetent or deceased guarantor; and after that, without notice to any other guarantor, the Bank may extend or renew any or all Indebtedness and may permit the Borrower to incur additional Indebtedness, without affecting in any manner the unconditional obligation of the remaining guarantor(s). This action by the Bank shall not, however, be deemed to affect any right to contribution which may exist among the guarantors. Any of the undersigned may terminate their obligation under this Guaranty as to future Indebtedness (except as provided below) by (and only by) delivering written notice of termination to an officer of the Bank and receiving from an officer of the Bank written acknowledgment of delivery; provided, the termination shall not be effective until the opening of business on the fifth (5th) day following written acknowledgment of delivery. Any termination shall not affect in any way the unconditional obligations of the remaining guarantor(s), whether or not the termination is known to the remaining guarantor(s). Any termination shall not affect in any way the unconditional obligations of the terminating guarantor(s) as to any Indebtedness existing at the effective date of termination or any Indebtedness created after that pursuant to any commitment or agreement of the Bank or any Borrower loan with the Bank existing at the effective date of termination (whether advances or readvances by the Bank are optional or obligatory), or any modifications, extensions or renewals of any of this Indebtedness, whether in whole or in part, and as to all of this Indebtedness and modifications, extensions or renewals of it, this Guaranty shall continue effective until the aforesaid payees repays same shall have been fully paid. The Bank has no duty to give notice of termination by any guarantor(s) to any remaining guarantor(s). The undersigned shall indemnify the Bank against all claims, damages, costs and expenses, including without limit reasonable attorneys' fees and costs, incurred by the Bank in connection with any suit, claim or part of said amount by reason of (i) any judgment, decree or order action against the Bank arising out of any court modification or administrative body having jurisdiction over such payee termination of a Borrower loan or any refusal by the Bank to extend additional credit in connection with the termination of its property this Guaranty. Notwithstanding any prior revocation, termination, surrender or discharge of this Guaranty (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including lien, pledge or security interest securing this Guaranty) in whole or part, the Borrower)effectiveness of this Guaranty, then and in such eventof all liens, each of the Parentpledges and security interests securing this Guaranty, Arlington and GMSC agrees that any such judgment, decree, order, settlement shall automatically continue or compromise shall be binding upon the Parent, Arlington or GMSCreinstated, as the case may be, notwithstanding in the event that (a) any revocation payment received or credit given by the Bank in respect of the Indebtedness is returned, disgorged or rescinded as a preference, impermissible setoff, fraudulent conveyance, diversion of trust funds, or otherwise under any applicable state or federal law, including, without limitation, laws pertaining to bankruptcy or insolvency, in which case this Holdings Guaranty Guaranty, and all liens, pledges and security interests securing this Guaranty, shall be enforceable against the undersigned as if the returned, disgorged or other instrument evidencing rescinded payment or credit had not been received or given by the Bank, and whether or not the Bank relied upon this payment or credit or changed its position as a consequence of it; or (b) any liability is imposed, or sought to be imposed, against the Bank relating to the environmental condition of, or the presence of hazardous or toxic substances on, in or about, any property given as collateral to the Bank by the Borrower, whether this condition is known or unknown, now exists or subsequently arises (excluding only conditions which arise after any acquisition by the Bank of any such property, by foreclosure, in lieu of foreclosure or otherwise, to the extent due to the wrongful act or omission of the Bank), in which case this Guaranty, and the Parentall liens, Arlington or GMSC, as the case may bepledges and maturity interests securing this Guaranty, shall both be and remain liable enforceable against the undersigned to the aforesaid payees hereunder for extent of all liability, costs and expenses (including without limit reasonable attorneys' fees and costs) incurred by the amount so repaid or recovered to the same extent Bank as if such amount had never originally been received by any such payee.th
Appears in 2 contracts
Sources: Guaranty (Deckers Outdoor Corp), Guaranty (Deckers Outdoor Corp)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans US Revolving Loans, the issuance of the US Letters of Credit, and the entering into of such Interest Rate Protection the US Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to US Borrower, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the US Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness the Guaranteed Obligations to Agent, for the Administrative Agent and/or benefit of the other Guaranteed CreditorsLender Group and the Bank Product Providers, or order, on demand, together with including any and all reasonable documented out-of-pocket expenses which Lender Group Expenses and other amounts under the Loan Agreement that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such US Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the US Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the US Obligations to the holders thereof, whether or not due or payable by any US Loan Party upon the occurrence of any of the events specified in Section 8.4, 8.5, 8.12, 8.13 or 8.14 of the Credit Agreement, and irrevocably and unconditionally promises to pay to Agent, for the benefit of the Lender Group and the Bank Product Providers, such indebtedness when such indebtedness otherwise becomes due and payable, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the US Obligations, whether executed by any Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the US Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the US Obligations or of any security therefor.
(d) This Guaranty includes all Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of the Lender Group and the Bank Product Providers and their respective successors, transferees, or assigns, and shall be enforceable by Agent for the benefit of the foregoing Persons.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand (except for such notices expressly agreed to be provided by Agent under the Loan Documents), and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
(h) Except as shall be required by applicable law and cannot be waived, each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid in accordance with the terms of the Loan Documents. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 2 contracts
Sources: Guaranty and Security Agreement, Guaranty and Security Agreement (Ciber Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunderto the Borrower, the Borrower and induce Holdings (collectively, the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC “Guaranty Parties”) hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally absolutely and irrevocably guarantees and unconditionally guarantees, on a joint and several basis and as a primary obligor and not merely as a surety, the full and prompt payment when dueand as due of the Obligations. Each Guaranty Party further agrees that the due and punctual payment of such Obligations may be extended or renewed, whether in whole or in part, without notice to or further assent from it, and that it will remain bound upon maturity, acceleration its guarantee hereunder notwithstanding any such extension or otherwise, renewal of any such Obligation. Each Guaranty Party hereby irrevocably and all unconditionally agrees, jointly and severally with the other Guaranty Parties, that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify the Administrative Agent, the Issuing Bank and the Lenders immediately on demand against any cost, loss or liability they incur as a result of any other Guaranty Party or any of its Affiliates not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such Guaranty Party under this Article X on the Obligations of date when it would have been due (but so that the Borrower to amount payable by each Guaranty Party under this indemnity will not exceed the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises amount which it would have had to pay such indebtedness under this Article X if the amount claimed had been recoverable on the basis of a guarantee). Each Guaranty Party waives presentment to, demand of payment from and protest to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting Guaranty Party of any of the Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. If a The obligations of each Guaranty Party hereunder shall not be affected by (a) the failure of the Administrative Agent, the Issuing Bank or any Lender to assert any claim is ever made upon or demand or to enforce any Guaranteed Creditor for repayment right or recovery remedy against any Guaranty Party under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension or renewal of any amount of the Obligations; (c) any rescission, waiver, amendment or amounts received modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e) the failure of the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Guaranty Party or any other guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Guaranty Party or any other guarantor of any of the Obligations, for any reason related to this Agreement, any Swap Agreement, any Banking Services Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Guaranty Party or on account any other guarantor of the Obligations, of any of the Obligations and or otherwise affecting any term of any of the aforesaid payees repays all Obligations; or part (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of said amount such Guaranty Party or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Guaranty Party to subrogation. Each Guaranty Party further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by the Administrative Agent, the Issuing Bank or any Lender to any balance of any deposit account or credit on the books of the Administrative Agent, the Issuing Bank or any Lender in favor of any Guaranty Party or any other Person. The obligations of each Guaranty Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of (i) any judgmentthe invalidity, decree illegality or order unenforceability of any court or administrative body having jurisdiction over such payee or of the Obligations, any impossibility in the performance of any of its property the Obligations or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC otherwise. Each Guaranty Party further agrees that any such judgment, decree, order, settlement its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Obligations now or compromise hereafter existing and shall continue to be binding upon the Parent, Arlington effective or GMSCbe reinstated, as the case may be, notwithstanding if at any revocation time payment, or any part thereof, of this Holdings any Obligation (including a payment effected through exercise of a right of setoff) is rescinded, or is or must otherwise be restored or returned by the Administrative Agent, the Issuing Bank or any Lender upon the insolvency, bankruptcy or reorganization of any Guaranty Party or otherwise (including pursuant to any settlement entered into by a holder of Obligations in its discretion). In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, the Issuing Bank or any Lender may have at law or in equity against any Guaranty Party by virtue hereof, upon the failure of any other Guaranty Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guaranty Party hereby promises to and will, upon receipt of written demand by the Administrative Agent, the Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent, the Issuing Bank or any Lender in cash an amount equal to the unpaid principal amount of the Obligations then due, together with accrued and unpaid interest thereon. Each Guaranty Party further agrees that if payment in respect of any Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other instrument evidencing event, payment of such Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent, the Issuing Bank or any Lender, disadvantageous to the Administrative Agent, the Issuing Bank or any Lender in any material respect, then, at the election of the Administrative Agent, such Guaranty Party shall make payment of such Obligation in Dollars (based upon the applicable Equivalent Amount in effect on the date of payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by the Administrative Agent and, as a separate and independent obligation, shall indemnify the Administrative Agent, the Issuing Bank and any Lender against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment. Upon payment by any Guaranty Party of any sums as provided above, all rights of such Guaranty Party against any Guaranty Party arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations owed by such Guaranty Party to the Administrative Agent, the Issuing Bank and the Lenders. Nothing shall discharge or satisfy the liability of any Guaranty Party hereunder except the Borrowerfull performance and payment in cash of the Obligations (other than obligations not yet due and payable under any Swap Agreement or any Banking Services Agreement). Each Guaranty Party that is a Qualified ECP Guarantor (each, a “Qualified Guaranty Party”) hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Article X or the Subsidiary Guaranty, as applicable, in respect of Specified Swap Obligations (provided, however, that each Qualified Guaranty Party shall only be liable under this paragraph for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this paragraph or otherwise under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified Guaranty Party under this paragraph shall remain in full force and effect until a discharge of such Qualified Guaranty Party’s obligations under this Article X in accordance with the Parentterms hereof. Each Qualified Guaranty Party intends that this paragraph constitute, Arlington and this paragraph shall be deemed to constitute, a “keepwell, support, or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder other agreement” for the amount so repaid or recovered to benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the same extent as if such amount had never originally been received by any such payeeCommodity Exchange Act.
Appears in 2 contracts
Sources: Credit Agreement (On Semiconductor Corp), Credit Agreement (On Semiconductor Corp)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements hereunder and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Parent from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington and GMSC Parent hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Parent hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower Borrowers to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower Borrowers to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the any Borrower), then and in such event, each of the Parent, Arlington and GMSC event Parent agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Parent Guaranty or other instrument evidencing any liability of the any Borrower, and the Parent, Arlington or GMSC, as the case may be, Parent shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (SAExploration Holdings, Inc.), Credit Agreement (SAExploration Holdings, Inc.)
Guaranty. In order (a) The Subsidiary Guarantors hereby, jointly and severally, absolutely and unconditionally guarantee to induce the Administrative Agent, the Collateral Agent and the Lenders holders from time to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition time of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as followsNotes: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, (a) the full and prompt payment of the principal of all of the Notes and of the interest thereon at the rate therein stipulated and the Make‑Whole Amount (if any), when dueand as the same shall become due and payable, whether by lapse of time, upon maturityredemption or prepayment, by extension or by acceleration or otherwisedeclaration, or otherwise (including (to the extent legally enforceable) interest due on overdue payments of any principal, Make‑Whole Amount (if any) or interest at the rate set forth in the Notes), (b) the full and prompt performance and observance by the Obligors of each and all of the Obligations obligations, covenants and agreements required to be performed or observed by the Obligors under the terms of the Borrower to Notes and the Guaranteed Creditors. If Note Purchase Agreement, and (c) the full and prompt payment, upon demand by any or all holder of the Obligations Notes, of all costs and expenses, legal or otherwise (including attorneys' fees) and such expenses, if any, as shall have been expended or incurred in the protection or enforcement of any right or privilege under the Notes or the Note Purchase Agreement, including, without limitation, in any consultation or action in connection therewith, and in each and every case irrespective of the Borrower to the Guaranteed Creditors becomes due and payable hereundervalidity, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditorsregularity, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account enforcement of any of the Obligations and Notes or the Note Purchase Agreement or any of the aforesaid payees repays all terms thereof or part of said amount by reason any other like circumstance or circumstances. The guaranty of the Notes herein provided for is a guaranty of the immediate and timely payment of the principal and interest on the Notes and the Make‑Whole Amount (if any) as and when the same are due and payable and shall not be deemed to be a guaranty only of the collectibility of such payments and that in consequence thereof each holder of the Notes may ▇▇▇ each Subsidiary Guarantor directly upon such principal and interest becoming so due and payable.
(b) The obligations of each Subsidiary Guarantor hereunder shall be limited to the lesser of (i) any judgmentthe obligations of the Obligors guaranteed hereunder, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) a maximum aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any settlement or compromise applicable provisions of any such claim effected by such payee with any such claimant comparable state law (including collectively, the Borrower"Fraudulent Transfer Laws"), then if and in to the extent such event, each Subsidiary Guarantor (or a trustee on its behalf) has properly invoked the protections of the ParentFraudulent Transfer Laws in each case after giving effect to all other liabilities of such Subsidiary Guarantor, Arlington and GMSC agrees contingent or otherwise, that any such judgment, decree, order, settlement or compromise shall be binding upon are relevant under the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeFraudulent Transfer Laws.
Appears in 2 contracts
Sources: Note Purchase Agreement (Sovran Self Storage Inc), Note Purchase Agreement (Sovran Acquisition LTD Partnership)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Endeavour International Corp), Credit Agreement (Endeavour International Corp)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: (a) Each of the ParentGuarantors hereby, Arlington jointly and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCseverally, unconditionally and irrevocably, promises to pay such indebtedness guarantees to the Administrative Agent and/or Collateral Agent, for the other Guaranteed ratable benefit of the Secured Creditors, and to the Secured Creditors the prompt and complete payment and performance when due and payable (whether at the stated maturity, by acceleration or orderotherwise) of all Obligations of the Borrower and each other Credit Party.
(b) Each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Agreement) hereby confirms that it is its intention that the guaranty made by the Guarantors not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, on demandthe Uniform Fraudulent Conveyance Act or any similar Federal or state law. To effectuate the foregoing intention, together with any each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Agreement) hereby irrevocably agrees that the Obligations guaranteed by such Guarantor shall be limited to such amount as will, after giving effect to such maximum amount and all reasonable documented out-of-pocket expenses which other (contingent or otherwise) liabilities of such Guarantor that are relevant under such laws, not constitute a fraudulent transfer or conveyance for purposes of such laws.
(c) Each Guarantor agrees that the Obligations guaranteed by it hereunder may be incurred at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the guaranty contained in this Article II or affecting the rights and remedies of the Collateral Agent or any other Secured Creditor hereunder.
(d) No payment made by the Administrative Agent and the other Guaranteed Creditors in collecting Borrower, any of the Obligations. If a claim is ever made upon Guarantors, any Guaranteed other guarantor or any other Person or received or collected by the Collateral Agent or any other Secured Creditor for repayment from the Borrower, any of the Guarantors, any other guarantor or recovery any other Person by virtue of any amount action or amounts received proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment or on account of any of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder (other than by, and only to the extent of, but without prejudice to Section 2.04, reducing the amount of Obligations guaranteed hereunder) which Guarantor shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Obligations or any payment received or collected from such Guarantor in respect of any of the aforesaid payees repays all or part Obligations), remain liable for the Obligations guaranteed by it hereunder up to the maximum liability of said amount by reason such Guarantor hereunder until (but subject to Section 2.04 in the case of following clause (i)) the earlier to occur of (i) any judgmentthe first date on which all the Loans and all other Obligations then due and owing, decree or order of any court or administrative body having jurisdiction over such payee or any of its property are paid in full in cash and the Total Commitment has been terminated or (ii) any settlement or compromise the release of any such claim effected by such payee Guarantor from this Agreement in accordance with any such claimant (including the Borrower), then and in such event, each express provisions of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeSection 7.13(b) hereof.
Appears in 2 contracts
Sources: Guaranty and Collateral Agreement (HUGHES Telematics, Inc.), Second Lien Guaranty and Collateral Agreement (HUGHES Telematics, Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC The Guarantor hereby unconditionally and irrevocably guarantees as primary obligor and not merely as suretyto the Agent, on behalf of the Lenders, the full and prompt payment when due, due (whether upon by scheduled maturity, acceleration or otherwise, ) and performance of any (a) the Obligations and all of the Obligations interest and other sums in respect thereof, and (b) all other liabilities, obligations and indebtedness, direct or indirect, matured or unmatured, primary or secondary, absolute or contingent, due or to become due, secured or unsecured of the Borrower to the Guaranteed Creditors. If Lenders, now or hereafter owing or incurred (including without limitation, reasonable costs and expenses incurred by the Lenders in attempting to collect or enforce any or all of the Obligations foregoing) relating to the Loan Documents, accrued in each case to the date of payment hereunder, including without limitation the performance of all agreements, covenants and conditions of the Borrower set forth in the Loan Agreement and all other Loan Documents. The responsibilities and obligations of the Borrower to the Lenders described above are hereinafter referred to collectively as the “Guaranteed Creditors becomes due Obligations.” This Guaranty is an absolute, unconditional and payable hereunder, each continuing guaranty of the Parent, Arlington full and GMSC, unconditionally punctual payment and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred performance by the Administrative Agent Borrower of the Guaranteed Obligations and not of collectability of the other Guaranteed Creditors Obligations, and is in collecting no way conditioned upon any requirement that the Lenders first attempt to collect any of the Obligations. If a claim is ever made upon Guaranteed Obligations from the Borrower or resort to any Guaranteed Creditor for repayment security or recovery other means of any amount or amounts received in obtaining payment or on account of any of the Guaranteed Obligations which the Lenders now have or may acquire after the date hereof, or upon any other contingency whatsoever. Upon any default by the Borrower in the full and any punctual payment and performance of the aforesaid payees repays all or part of said amount by reason of Guaranteed Obligations (i) any judgment, decree or order after the passage of any court applicable grace period), the liabilities and obligations of the Guarantor hereunder shall, at the option of the Lenders, become forthwith due and payable to the Lenders without demand or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise notice of any such claim effected nature, all of which are expressly waived by such payee with the Guarantor. Payments by the Guarantor hereunder may be required by the Lenders on any such claimant (including the Borrower), then and in such event, each number of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeoccasions.
Appears in 2 contracts
Sources: Guaranty Agreement (First Look Studios Inc), Guaranty Agreement (First Look Studios Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Parent from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each issuance of the ParentLetters of Credit, Arlington and GMSC the Parent hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington Parent hereby and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, to the Guaranteed Creditors the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. This is a guaranty of payment and not of collection. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of event the Parent, Arlington and GMSC Parent agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Parent Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Parent shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Atwood Oceanics Inc), Credit Agreement (Atwood Oceanics Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agent, the Issuing Bank and the Lenders Banks to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and or Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and or Other Hedging Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, Holdings unconditionally and irrevocably, irrevocably promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and or the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Power Ten), Credit Agreement (Universal Compression Holdings Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Arranger and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington and GMSC Guarantors hereby agrees with the Guaranteed Creditors Financing Parties as follows: Each of the Parenteach Guarantor hereby unconditionally, Arlington absolutely and GMSC hereby unconditionally irrevocably, jointly and irrevocably severally, guarantees as primary obligor obligors and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsObligations. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the ParentGuarantor, Arlington and GMSCunconditionally, unconditionally absolutely and irrevocably, jointly and severally, promises to pay such indebtedness Guaranteed Obligations to the Administrative Agent and/or the other Guaranteed Creditors, or orderFinancing Parties, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors Financing Parties in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor Financing Party for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower)Property, then and in such event, event each of the Parent, Arlington and GMSC Guarantor agrees that any such judgment, decree, order, settlement decree or compromise order shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain jointly and severally liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee. For purposes of this Guaranty, each Guarantor expressly and irrevocably waives any order, excusion and division benefits they may have under any applicable jurisdiction.
Appears in 2 contracts
Sources: Credit Agreement (Nii Holdings Inc), Credit Agreement (Nii Holdings Inc)
Guaranty. (a) In order to induce the Administrative AgentAgents, the Collateral Agent Agents, the Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Guarantee Creditors to enter into Interest Rate Protection Agreements and Other Permitted Hedging Agreements Arrangements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and Other Permitted Hedging AgreementsArrangements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Guarantee Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guarantor Obligations of the Borrower Borrowers to the Guaranteed Creditors. If any or all of the Guarantor Obligations of the Borrower Borrowers to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness to the applicable Administrative Agent and/or the other applicable Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent Agents and the other Guaranteed Creditors in collecting any of the Guarantor Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guarantor Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the any Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall shall, to the fullest extent permitted by law, be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of the guarantee contained in this Holdings Guaranty Section 12 or other instrument evidencing any liability of the any Borrower, and Holdings shall, to the Parentfullest extent permitted by law, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) The guarantee contained in this Section 12 shall remain in full force and effect until the first date on which all the Loans (including the face amount of all Bankers’ Acceptance Loans), any Reimbursement Obligations and the obligations of Holdings under the guarantee contained in this Section 12 then due and owing, in each case, shall have been satisfied by payment in full in cash, no Letter of Credit shall be outstanding (except for Letters of Credit that have been cash collateralized or otherwise provided for in a manner reasonably satisfactory to the applicable Issuing Lender) and the Commitment shall be terminated, notwithstanding that from time to time during the term of this Agreement any of the Borrowers may be free from any obligations under the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (RSC Holdings Inc.), Credit Agreement (RSC Equipment Rental, Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agent, the Issuing Banks and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements Hedge Obligations and Other Hedging Agreements Cash Management Obligations with one or more Loan Parties and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements Hedge Obligations and Other Hedging AgreementsCash Management Obligations, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes become due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness Indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on promptly upon written demand, together with any and all actual reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the ObligationsGuaranteed Obligations in each case to the extent reimbursable pursuant to Section 9.05. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Nuveen Investments Holdings, Inc.), Credit Agreement (Nuveen Investments Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Borrower from the continuation and conversion proceeds of the Revolving Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each issuance of the ParentLetters of Credit, Arlington and GMSC the Guarantors hereby agrees agree with the Guaranteed Creditors as follows: Each of the Parent, Arlington Guarantors hereby and GMSC hereby unconditionally and irrevocably guarantees guarantee to the Guaranteed Creditors, as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, promises promise to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of event the Parent, Arlington and GMSC agrees Guarantors agree that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Credit Agreement (Trico Marine Services Inc), Credit Agreement (Trico Marine Services Inc)
Guaranty. In order Guarantor hereby unconditionally guarantees to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, Funding Parties the full and prompt payment when due, whether upon maturity, by acceleration or otherwise, and at all times thereafter, and the full and prompt performance, of any and all of the Obligations Liabilities (as hereinafter defined), including rent, interest and Yield on any such Liabilities, whether accruing before or after any bankruptcy or insolvency case or proceeding involving Guarantor, any Lessee or any other Person and, if rent, interest or Yield on any portion of such obligations ceases to accrue by operation of law by reason of the Borrower commencement of such case or proceeding, including such rent, interest and earnings as would have accrued on any such portion of such obligations if such case or proceeding had not commenced, and further agrees to pay all reasonable expenses (including reasonable attorneys' fees and legal expenses) actually paid or incurred by each of the Guaranteed CreditorsFunding Parties in endeavoring to collect the Liabilities, or any part thereof, and in enforcing this Guaranty. If Notwithstanding the foregoing, during the Construction Term for any or Leased Property, only the Lessor shall be entitled to make a claim under this Guaranty for Liabilities related to such Leased Property. The term "Liabilities", as used herein, shall mean all of the Obligations of following, in each case howsoever created, arising or evidenced, whether direct or indirect, joint or several, absolute or contingent, or now or hereafter existing, or due or to become due: (i) all amounts payable by the Borrower Lessees or the Construction Agent to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the Funding Parties under the Lease (including, without limitation, Basic Rent, Supplemental Rent and the Recourse Deficiency Amount), the Master Agreement, the Construction Agency Agreement or any other Guaranteed Creditors Operative Document, and (ii) all principal of the Note and interest accrued thereon, and all additional amounts and other sums at any time due and owing, and required to be paid, to the Funding Parties under the terms of the Master Agreement, the Loan Agreement, the Construction Agency Agreement, the Assignments of Lease and Rents, the Mortgages, the Note or any other Operative Document; provided, however, that the Guarantor will not be obligated to pay to the Agent and Funding Parties under this Guaranty any amounts greater than the Lessees and the Construction Agent would have had to pay to the Agent and the Funding Parties under the Lease, the Master Agreement, the Construction Agency Agreement and the other Operative Documents assuming that such documents were enforced in collecting accordance with their terms (and without giving effect to any discharge or limitation thereon resulting or arising by reason of the bankruptcy or insolvency of a Lessee), plus all actual and reasonable costs of enforcing this Guaranty. By way of extension but not in limitation of any of its other obligations hereunder, Guarantor stipulates and agrees that if any foreclosure proceedings are commenced with respect to any Leased Property and result in the entering of a foreclosure judgment, any such foreclosure judgment, to the extent related to the Liabilities and payable to any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any Funding Parties, shall be treated as part of the Obligations Liabilities, and any Guarantor unconditionally guarantees the full and prompt payment of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Guaranty Agreement (Choicepoint Inc), Guaranty Agreement (Choicepoint Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: (a) Each of the ParentGuarantors hereby, Arlington jointly and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCseverally, unconditionally and irrevocably, promises to pay such indebtedness guarantees to the Administrative Agent and/or Collateral Agent, for the other Guaranteed ratable benefit of the Secured Creditors, and to the Secured Creditors the prompt and complete payment and performance when due and payable (whether at the stated maturity, by acceleration or orderotherwise) of all Obligations of the Borrower and each other Credit Party.
(b) Each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Agreement) hereby confirms that it is its intention that the guaranty made by the Guarantors not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, on demandthe Uniform Fraudulent Conveyance Act or any similar Federal or state law. To effectuate the foregoing intention, together with any each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Agreement) hereby irrevocably agrees that the Obligations guaranteed by such Guarantor shall be limited to such amount as will, after giving effect to such maximum amount and all reasonable documented out-of-pocket expenses which other (contingent or otherwise) liabilities of such Guarantor that are relevant under such laws, not constitute a fraudulent transfer or conveyance for purposes of such laws.
(c) Each Guarantor agrees that the Obligations guaranteed by it hereunder may be incurred at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the guaranty contained in this Article II or affecting the rights and remedies of the Collateral Agent or any other Secured Creditor hereunder.
(d) No payment made by the Administrative Agent and the other Guaranteed Creditors in collecting Borrower, any of the Obligations. If a claim is ever made upon Guarantors, any Guaranteed other guarantor or any other Person or received or collected by the Collateral Agent or any other Secured Creditor for repayment from the Borrower, any of the Guarantors, any other guarantor or recovery any other Person by virtue of any amount action or amounts received proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment or on account of any of the Obligations and shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Obligations or any payment received or collected from such Guarantor in respect of any of the aforesaid payees repays all or part Obligations), remain liable for the Obligations guaranteed by it hereunder up to the maximum liability of said amount by reason such Guarantor hereunder until (but subject to Section 2.04 in the case of following clause (i)) the earlier to occur of (i) any judgmentthe first date on which all the Loans and all other Obligations then due and owing, decree or order of any court or administrative body having jurisdiction over such payee or any of its property are paid in full in cash and the Total Commitment has been terminated or (ii) any settlement or compromise the release of any such claim effected by such payee Guarantor from this Agreement in accordance with any such claimant (including the Borrower), then and in such event, each express provisions of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeSection 7.13(b) hereof.
Appears in 2 contracts
Sources: Guaranty and Collateral Agreement (NightHawk Radiology Holdings Inc), Guaranty and Collateral Agreement (NightHawk Radiology Holdings Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements hereunder and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower Guaranteed Parties to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower Guaranteed Parties to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness Guaranteed Obligations to the Administrative Agent for the benefit of the Administrative Agent and/or the other Guaranteed Creditors, or orderCreditors to which such Guaranteed Obligations are owed, on demand, demand together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the ObligationsGuaranteed Obligations to the extent reimbursable under Section 14.01. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerGuaranteed Parties), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 2 contracts
Sources: Bridge Loan Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.)
Guaranty. In order (a) Subject to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsArticle 11, each of the ParentGuarantors hereby, Arlington jointly and GMSC hereby agrees with severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Guaranteed Creditors as follows: Each Trustee and to the Trustee and its successors and assigns, irrespective of the Parent, Arlington validity and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as suretyenforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium and Liquidated Damages, if any, and interest on, the Notes will be promptly paid in full and prompt payment when due, whether upon at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise, . Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Guaranty will not be discharged except by complete performance of the Obligations obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guaranty, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the Borrower to obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the Guaranteed Creditors. If purposes of this Guaranty, notwithstanding any stay, injunction or all other prohibition preventing such acceleration in respect of the Obligations obligations guaranteed hereby, and (2) in the event of the Borrower to the Guaranteed Creditors becomes any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due and payable hereunder, each by the Guarantors for the purpose of this Guaranty. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to Holders under the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeGuaranty.
Appears in 2 contracts
Sources: Indenture (Casino One Corp), Indenture (Pinnacle Entertainment Inc)
Guaranty. In order to induce the Administrative AgentTherefore, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunderfor value received, and induce in consideration of any loan, advance or financial accommodation of any kind whatsoever heretofore, now or hereafter made, given or granted to the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received Borrowers by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsAgent or any Lender, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Guarantor hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturityat maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon Without limiting the foregoing, the Obligations guaranteed hereby include all fees, costs and expenses (including attorneys’ fees and expenses) incurred by Agent or any Guaranteed Creditor for repayment or recovery of Lender in attempting to collect any amount due under this Guaranty or amounts received in prosecuting any action against any Borrower, any Guarantor or any other guarantor of all or part of the Obligations and all interest, fees, costs and expenses owing to Agent or any Lender after the commencement of bankruptcy proceedings with respect to any Borrower, any Guarantor or any other guarantor of all or part of the Obligations (whether or not the same may be collected while such proceedings are pending). Each Guarantor hereby agrees that this Guaranty is a present and continuing guaranty of payment and not of collection and that its obligations hereunder shall be unconditional, irrespective of (i) the validity or on account enforceability of the Obligations or any part thereof, or of any of the Obligations and Financing Documents, (ii) the waiver or consent by Agent or any Lender with respect to any provision of the aforesaid payees repays any Financing Document, or any amendment, modification or other change with respect to any Financing Document, (iii) any merger or consolidation of any Borrower, any Guarantor or any other guarantor of all or part of said amount by reason the Obligations into or with any Person or any change in the ownership of the equity of any Borrower, any Guarantor or any other guarantor of all or part of the Obligations, (iiv) any judgment, decree or order dissolution of any court or administrative body having jurisdiction over such payee Guarantor or any insolvency, bankruptcy, liquidation, reorganization or similar proceedings with respect to any Borrower, any Guarantor or any other guarantor of all or part of the Obligations, (v) any action or inaction on the part of Agent or any Lender, including without limitation the absence of any attempt to collect the Obligations from any Borrower, any Guarantor or any other guarantor of all or part of the Obligations or other action to enforce the same or the failure by Agent to take any steps to perfect and maintain its property Lien on, or to preserve its rights to, any security or collateral for the Obligations, (vi) Agent’s election, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as amended (the “Bankruptcy Code”) of the application of Section 1111(b)(2) of the Bankruptcy Code, (vii) any borrowing or grant of a Lien by any Borrower, any Guarantor or any other guarantor of all or part of the Obligations, as debtor-in-possession, under Section 364 of the Bankruptcy Code, (viii) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Agent’s or any Lender’s claims for repayment of the Obligations, (ix) Agent’s or any Lender’s inability to enforce the Obligations of any Borrower as a result of the automatic stay provisions under Section 362 of the Bankruptcy Code, (x) the discharge or release by Agent and/or Lenders of any Guarantor’s obligations and liabilities under this Guaranty, (xi) the discharge or release by Agent and/or Lenders of any other guarantor’s obligations and liabilities under any guaranty or (iixii) any settlement other circumstance which might otherwise constitute a legal or compromise equitable discharge or defense of any such claim effected by such payee with Borrower, any such claimant (including the Borrower), then and in such event, each Guarantor or any other guarantor of all or part of the Parent, Arlington Obligations other than a defense of payment and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation performance in full in cash of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeall Obligations.
Appears in 2 contracts
Sources: Guaranty (Comsys It Partners Inc), Guaranty (Comsys It Partners Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC The Parent hereby agrees with the Guaranteed Creditors as follows: Each of the Parentthat it is liable for, Arlington and GMSC hereby unconditionally and irrevocably guarantees and, as primary obligor and not merely as surety, absolutely and unconditionally guarantees to the full and holders of Notes the prompt payment when due, whether upon at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any the obligations and all costs and expenses including, without limitation, all court costs and reasonable attorneys’ and paralegals’ fees (including allocated costs of in‑house counsel and paralegals that are documented in writing) and expenses paid or incurred by the holders of Notes in endeavoring to collect all or any part of the Obligations from, or in prosecuting any action against, the Company or any other guarantor of the Borrower to the Guaranteed Creditors. If all or any or all part of the Obligations of the Borrower to the Guaranteed Creditors becomes due (such costs and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demandexpenses, together with any and all reasonable documented out-of-pocket expenses which the obligations, collectively the “Guaranteed Obligations”). The Parent further agrees that the Guaranteed Obligations may be incurred extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Parent Guaranty apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any holder of a Note that extended any portion of the Administrative Agent Guaranteed Obligations. The Parent irrevocably and the other Guaranteed Creditors in collecting unconditionally agrees that if any of the Obligations. If Guaranteed Obligations is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify the the holders of Notes immediately on demand against any cost, loss or liability they incur as a claim is ever made upon any Guaranteed Creditor for repayment or recovery result of the Company not paying any amount which would, but for such unenforceability, invalidity, or amounts received in payment or illegality, have been payable by it under this Section 22 on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of date when it would have been due (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees but so that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered payable by the Parent under this indemnity will not exceed the amount it would have had to pay under this Section 22 if the same extent as if such amount claimed had never originally been received by any such payeerecoverable on the basis of a guaranty).
Appears in 2 contracts
Sources: Note Purchase and Guarantee Agreement (Paychex Inc), Note Purchase and Guarantee Agreement (Paychex Inc)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Permitted Hedging Agreements Arrangements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Term Loans, and the entering into of such Interest Rate Protection Agreements and Other Permitted Hedging AgreementsArrangements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guarantor Obligations of the Borrower Borrowers to the Guaranteed Creditors. If any or all of the Guarantor Obligations of the Borrower Borrowers to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, Creditors on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guarantor Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guarantor Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the any Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall shall, to the fullest extent permitted by law, be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of the guarantee contained in this Holdings Guaranty Section 11 or other instrument evidencing any liability of the any Borrower, and Holdings shall, to the Parentfullest extent permitted by law, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) The guarantee contained in this Section 11 shall remain in full force and effect until the first date on which all the Term Loans, the obligations of Holdings under the guarantee contained in this Section 11 then due and owing shall have been satisfied by payment in full in cash and any Term Loan Commitment shall have been terminated, notwithstanding that from time to time during the term of this Agreement any of the Borrowers may be free from any obligations under the Loan Documents.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (RSC Holdings Inc.), Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Guaranty. In order (a) Guarantor unconditionally guarantees and promises to induce pay to Executive, or order, at Executive’s address set forth in Section 4(a) hereof, on demand after the Administrative Agentdefault by Obligor, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition lawful money of the direct benefits to be received by the ParentUnited States, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all Obligations (as hereinafter defined) consisting of payments due to Executive. For purposes of this Guaranty the term “Obligations” shall mean and include all payments owed by Obligor to Executive of every kind and description, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising pursuant to the terms of Sections 2 and 3 of the Contract (as such Obligations may become due subject to the provisions of the Borrower Contract, including all notice requirements and cure provisions), including all interest, late fees, charges, expenses, attorneys’ fees and other professionals’ fees chargeable to Obligor or payable by Obligor there under and any costs of collection hereunder, including attorneys’ and other professionals’ fees.
(b) This Guaranty is absolute, unconditional, continuing and irrevocable and constitutes an independent guaranty of payment and not of collect ability (provided that it is subject to Obligor defaulting on any of the Obligations), and is in no way conditioned on or contingent upon any attempt to enforce in whole or in part any of Obligor’s Obligations to Executive, the existence or continuance of Obligor as a legal entity, the consolidation or merger of Obligor with or into any other entity, the sale, lease or disposition by Obligor of all or substantially all of its assets to any other entity, or the bankruptcy or insolvency of Obligor, the admission by Obligor of its inability to pay its debts as they mature, or the making by Obligor of a general assignment for the benefit of, or entering into a composition or arrangement with, creditors. If Obligor or any permitted assignee or successor of Obligor shall fail to pay or perform any Obligations to Executive which are subject to this Guaranty as and when they are due, Guarantor shall forthwith pay to Executive all such liabilities or obligations in immediately available funds. Each failure by Obligor to pay or perform any such liabilities or obligations shall give rise to a separate cause of action, and separate suits may be brought hereunder as each cause of action arises.
(c) Executive, may (subject to the Guaranteed Creditors. If provisions of the Contract) at any time and from time to time, without the consent of or notice to Guarantor, except such notice as may be required by applicable statute which cannot be waived, without incurring responsibility to Guarantor, and without impairing or releasing the obligations of Guarantor hereunder, (i) change the manner, place and terms of payment or change or extend the time of payment of, renew, or alter any Obligation hereby guaranteed, or in any manner modify, amend or supplement the terms of the Contract or any documents, instruments or agreements executed in connection therewith, (ii) exercise or refrain from exercising any rights against Obligor or others (including Guarantor) or otherwise act or refrain from acting, (iii) settle or compromise any Obligations hereby guaranteed and/or any obligations and liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any obligations and liabilities which may be due to Executive or others, (iv) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner or in any order any property pledged or mortgaged by anyone to secure or in any manner securing the Obligations hereby guaranteed, (v) take and hold security or additional security for any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due obligations or liabilities covered by this Guaranty, and payable hereunder(vi) assign its rights and interests under this Guaranty, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, in whole or order, on demand, together with any in part.
(d) This is a continuing Guaranty for which Guarantor receives continuing consideration and all reasonable documented out-of-pocket expenses obligations to which it applies or may apply under the terms hereof shall be incurred by conclusively presumed to have been created in reliance hereon and this Guaranty is therefore irrevocable without the Administrative Agent and prior written consent of Executive.
(e) Guarantor may bring action to enforce Executive’s obligations under the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of Contract if (i) any judgment, decree or order proceeding is brought against Guarantor to seek enforcement of any court or administrative body having jurisdiction over such payee or any of its property this Guaranty or (ii) Guarantor makes any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of payment to Executive pursuant to this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeGuaranty.
Appears in 2 contracts
Sources: Employment Agreement (Impac Mortgage Holdings Inc), Guaranty (Impac Mortgage Holdings Inc)
Guaranty. In order The Parent hereby unconditionally guarantees to induce the Administrative AgentAgents, the Collateral Agent Issuing Banks and the Lenders to enter into this Agreement and to extend credit hereunder, their respective permitted successors and induce assigns and the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition subsequent holders of the direct benefits to be received Obligations (including, without limitation, any interest on the Loans accruing after the filing of any insolvency, receivership, bankruptcy, dissolution, liquidation, or reorganization proceeding, or in any other proceeding, whether voluntary or involuntary, by or against the Parent, Arlington and GMSC from the continuation and conversion any Borrower or any of the Loans Borrowers' Subsidiaries, under any bankruptcy or insolvency law or laws, federal or state relating to the relief of debtors of any jurisdiction, whether now or hereafter in effect, and in any out-of-court composition, assignment for the benefit of creditors, readjustment of Indebtedness, reorganization, extension or other debt arrangement of any kind (collectively, an "Insolvency Proceeding")), whether or not such interest accrues or is recoverable against the Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), irrespective of the validity and enforceability of this Agreement, the Notes or the other Loan Documents or the Obligations of the Borrowers or any of the other Guarantors hereunder or thereunder, the value or sufficiency of any Collateral or any other circumstance that might otherwise affect the liability of a guarantor, that: (i) the principal of and interest on the Loans, the Notes and all other Obligations of the Borrowers and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of other Guarantors to the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as suretyAgents, the Issuing Banks and the Lenders under this Agreement, the Notes and the other Loan Documents shall be promptly paid in full and prompt payment when due, whether upon at stated maturity, by acceleration or otherwise, in accordance with the terms hereof and thereof; and (ii) in case of any and all extension of time of payment or renewal of any Notes or any of such other Obligations, the same shall be promptly paid in full when due in accordance with the terms of the Obligations extension or renewal, whether at stated maturity, by acceleration or otherwise. The foregoing guaranty is a guaranty of the Borrower to the Guaranteed Creditorspayment and not of collection. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes Failing payment when due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of so guaranteed for whatever reason, the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall Parent will be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable obligated to the aforesaid payees hereunder for the amount so repaid or recovered to pay the same extent as if such amount had never originally been received by any such payeeimmediately.
Appears in 2 contracts
Sources: Credit Agreement (Bull Run Corp), Credit Agreement (Bull Run Corp)
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of make the Loans and the entering into Issuers to issue Letters of such Interest Rate Protection Agreements and Other Hedging AgreementsCredit, each of the ParentGuarantor hereby absolutely, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, the full and prompt punctual payment when due, whether upon maturityat stated maturity or earlier, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Loan Document, of all the Obligations, whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Borrower, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under the Bankruptcy Code, whether or <PAGE> not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.
(b) Each Guarantor further agrees that, if (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee payment made by Borrower or any of its property other person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or
(ii) the proceeds of Collateral are required to be returned by any settlement Guarantied Party to the Borrower, its estate, trustee, receiver or compromise any other party, including any Guarantor, under any bankruptcy law, equitable cause or any other Requirement of Law, then, to the extent of such payment or repayment, any such Guarantor's liability hereunder (and any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other Collateral securing such Guarantor's liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such claim effected by such payee with any such claimant (including the Borrower), then and Guarantor in such event, each respect of the Parent, Arlington and GMSC agrees that amount of such payment (or any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty Lien or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if Collateral securing such amount had never originally been received by any such payeeobligation).
Appears in 2 contracts
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit, and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Guarantied Obligations (and in the case of any Borrower, the Guarantied Obligations of the Borrower to the Guaranteed Creditorsother Borrowers). If any or all of the Obligations of the Borrower to the Guaranteed Creditors constituting Guarantied Obligations becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group and the Bank Product Providers, together with any and all reasonable documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Guarantied Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Guarantied Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such Guarantied Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking (other than payment in full of the Guarantied Obligations or any partial payment thereof made in accordance with the Loan Documents), (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guaranteed hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group and the Bank Product Providers) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand (other than any notice expressly required to be provided hereunder or under any other Loan Document), and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon), or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty (other than a defense of payment in full of the Guarantied Obligations).
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group or any Bank Product Provider with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver, supplement, restatements, extension, novation, renewal, replacements, or continuation of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider (other than payment in full of the Guarantied Obligations);
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any Grantor or any other guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 1 contract
Sources: Guaranty and Security Agreement (CPI Card Group Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Other Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Corporate Guarantor from the continuation and conversion proceeds of the Loans and Loans, the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Corporate Guarantor hereby agrees with the Guaranteed Secured Creditors as follows: Each of the Parent, Arlington Corporate Guarantor hereby and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, to the Secured Creditors the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Secured Obligations of the Borrower to the Guaranteed Secured Creditors. This is a guaranty of payment and not of collection. If any or all of the Secured Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCCorporate Guarantor, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Secured Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Secured Creditors in collecting any of the Secured Obligations. If a claim is ever made upon any Guaranteed Secured Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Secured Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of event the Parent, Arlington and GMSC Corporate Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beCorporate Guarantor, notwithstanding any revocation of this Holdings Corporate Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Corporate Guarantor shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the DIP Lenders to enter into this Agreement and to extend credit hereunder, and induce make the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsDIP Loans, each of the ParentGuarantor hereby absolutely, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, the full and prompt punctual payment when due, whether upon maturityat stated maturity or earlier, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other DIP Loan Document, of all the DIP Obligations, whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Borrowers, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under the Bankruptcy Code, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.
(b) Each Guarantor further agrees that, if (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee payment made by the Borrowers or any of its property other person and applied to the DIP Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (ii) the proceeds of Collateral are required to be returned by any settlement Guarantied Party to the Borrowers, its estate, trustee, receiver or compromise any other party, including any Guarantor, under any bankruptcy law, equitable cause or any other Requirement of Law, then, to the extent of such payment or repayment, any such Guarantor’s liability hereunder (and any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other Collateral securing such Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such claim effected by such payee with any such claimant (including the Borrower), then and Guarantor in such event, each respect of the Parent, Arlington and GMSC agrees that amount of such payment (or any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty Lien or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if Collateral securing such amount had never originally been received by any such payeeobligation).
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent(a) Each Subsidiary Guarantor hereby absolutely, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, jointly with the other guarantors and severally, as primary obligor and not merely as surety, the full and prompt punctual payment when due and in the currency due, whether upon maturityat stated maturity or earlier, acceleration by reason of acceleration, mandatory prepayment or otherwiseotherwise in accordance herewith or any other Loan Document, of all the Obligations, whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Borrower, whether now or hereafter existing, and all whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under Title 11 of the Obligations United States Code (the “Bankruptcy Code”), or any applicable provisions of comparable state or foreign law, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.
(b) Each Subsidiary Guarantor further agrees that, if any payment made by the Borrower or any other Person and applied to the Guaranteed Creditors. If Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or all of the Obligations of the Borrower preferential or otherwise required to be refunded or repaid, then, to the Guaranteed Creditors becomes due extent of such payment or repayment, the Subsidiary Guarantor’s liability hereunder shall be and payable hereunderremain in full force and effect, each of the Parentas fully as if such payment had never been made. If, Arlington and GMSC, unconditionally and irrevocably, promises prior to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment foregoing, this Guaranty shall have been cancelled or recovery of any amount surrendered, this Guaranty shall be reinstated in full force and effect, and such prior cancellation or amounts received in payment surrender shall not diminish, release, discharge, impair or on account of any otherwise affect the obligations of the Obligations and any Subsidiary Guarantor in respect of the aforesaid payees repays all or part amount of said amount by reason of (i) any judgmentsuch payment; provided, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower)however, then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise reinstated Guaranty shall be binding released immediately upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeObligations being indefeasibly paid in full.
Appears in 1 contract
Guaranty. In order payment, performance or enforcement of Guarantor's obligations under this Guaranty or any other Operative Document, including any right of subrogation, reimbursement, exoneration, or indemnification, any right to induce participate in any claim or remedy of Beneficiaries against Lessee or any Collateral which Agent now has or hereafter acquires, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the Administrative Agentright to take or receive from Lessee, directly or indirectly, in cash or other property or by set-off or in any manner, payment or security on account of such claim or other rights. If any amount shall be paid to Guarantor in violation of the preceding sentence and the Guaranteed Obligations shall not have been indefeasibly paid in cash, such amount shall be deemed to have been paid to Guarantor for the benefit of, and held in trust for, the Collateral Beneficiaries, and shall forthwith be paid to Agent to be credited and applied pursuant to the terms of the Loan Agreement and the Lenders to enter into this Agreement and to extend credit hereunder, and induce Trust Agreement. Guarantor acknowledges that it will receive substantial economic benefits from the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received financing arrangements contemplated by the Parent, Arlington Operative Documents and GMSC from that the continuation and conversion of the Loans and the entering into waiver set forth in this Section 5 is knowingly made in contemplation of such Interest Rate Protection Agreements and Other Hedging Agreementsbenefits. Guarantor hereby absolutely, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor waives and agrees not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration to assert or otherwise, take advantage of any and all defense based upon an election of remedies by Agent, including an election to proceed by nonjudicial rather than judicial foreclosure, which destroys or impairs any right of subrogation of Guarantor or the Obligations right of the Borrower Guarantor to the Guaranteed Creditorsproceed against any Person for reimbursement or both. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.SECTION 6
Appears in 1 contract
Sources: Guaranty (Stratosphere Corp)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agent, the Issuing Lender and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and or Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and or Other Hedging Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, Holdings unconditionally and irrevocably, irrevocably promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and or the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans Revolving Loans, the issuance of the Letters of Credit, and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group and the Bank Product Providers, together with any and all reasonable and documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrowers or Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group and the Bank Product 9 Providers, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group and the Bank Product Providers) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors. 10
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand, and without affecting or impairing its liability hereunder, from time to time to: (i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered; (ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof; (iii) exercise or refrain from exercising any rights against any Grantor; (iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors; (v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors; (vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid; (vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or (viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be Guarantied hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group or any Bank Product Provider with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any 11 such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following: (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit; (iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations; (iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider; (v) 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 Guarantied Obligations or any security therefor; (vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties; (vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or (viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
(i) Waivers (i) Each of the Guarantors waives any right (except as shall be required by applicable statute and cannot be waived) to require Agent, any other member of the Lender Group, or any Bank Product Provider to (A) proceed against any other Grantor or any other Person, (B) proceed against or exhaust any security held from any other Grantor or any other Person, or (C) protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Grantor, any other Person, or any collateral, or (D) pursue any other remedy in any member of the Lender Group’s or any Bank Product Provider’s power whatsoever. Each of the Guarantors waives any defense based on or arising out of any defense of any Grantor or any other Person, other than payment of the Obligations to the extent of such payment, based on or arising out of the disability of any Grantor or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Grantor other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Agent by one or more judicial or nonjudicial sales or other dispositions, whether or not every aspect of any such sale is commercially 12 reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Agent, any other member of the Lender Group, or any Bank Product Provider may have against any Grantor or any other Person, or any security, in each case, without affecting or impairing in any way the liability of any of the Guarantors hereunder except to the extent the Obligations have been paid.
(ii) Each of the Guarantors waives all presentments, demands for performance, protests and notices, including notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations. Each of the Guarantors waives notice of any Default or Event of Default under any of the Loan Documents. Each of the Guarantors assumes all responsibility for being and keeping itself informed of each Grantor’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope, and extent of the risks which each of the Guarantors assumes and incurs hereunder, and agrees that neither Agent nor any of the other members of the Lender Group nor any Bank Product Provider shall have any duty to advise any of the Guarantors of information known to them regarding such circumstances or risks.
(iii) To the fullest extent permitted by applicable law, each Guarantor hereby waives: (A) any right to assert against any member of the Lender Group or any Bank Product Provider, any defense (legal or equitable), set-off, counterclaim, or claim which each Guarantor may now or at any time hereafter have against
Appears in 1 contract
Sources: Guaranty and Security Agreement
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Subsidiary Guarantors from the continuation and conversion proceeds of the Loans Advances and by virtue of the entering into of such Interest Rate Protection Agreements and Other Hedging Agreementsfinancial accommodations to be made to the Borrower, each of the ParentSubsidiary Guarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees (this “Guaranty”) as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of all of the Secured Obligations plus any interest accruing on any unpaid amounts owing by such Subsidiary Guarantor hereunder (such interest to accrue at the rate set forth in Section 2.2(d)) from the date a demand is made for payment thereunder, plus any and all of the Obligations of the Borrower fees, costs and expenses in protecting or enforcing its rights and remedies with respect to the Guaranteed CreditorsGuaranty, including, without limitation, attorney’s fees and fees, costs and expenses of litigation (the “Guarantied Obligations”). If any or all of the Secured Obligations of the Borrower to the Guaranteed Creditors constituting Guarantied Obligations becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCSubsidiary Guarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which Lender that may be incurred by the Administrative Agent and the other Guaranteed Creditors Lender in demanding, enforcing, or collecting any of the Guarantied Obligations. If a claim is ever made upon any Guaranteed Creditor the Lender for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of the aforesaid payees Lender repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerBorrower or any Subsidiary Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Subsidiary Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beSubsidiary Guarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Obligor, and the Parent, Arlington or GMSC, as the case may be, Subsidiary Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: (a) Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCGuarantor hereby, unconditionally and irrevocably, promises jointly and severally with all other Guarantors, guarantees to pay the Secured Parties the prompt and complete payment and performance when due of all present and future Obligations, whether at stated maturity, by acceleration or otherwise (the "GUARANTEED OBLIGATIONS"); PROVIDED, HOWEVER, that anything herein or in any other Loan Documents to the contrary notwithstanding, the maximum liability of any Guarantor hereunder and under the other Loan Documents shall in no event exceed an amount equal to the largest amount that would not render such indebtedness Guarantor's obligations hereunder subject to avoidance under Section 548 of the Federal Bankruptcy Code or any equivalent provision of federal law or the law of any state.
(b) The guaranty contained herein is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of the Guaranteed Obligations, is not a guaranty of collection, and is in no way conditioned upon any requirement that the Administrative Agent on behalf of the Secured Parties or any of the Secured Parties first collect or attempt to collect the Guaranteed Obligations or any portion thereof from the Borrowers or any of their Subsidiaries or any other guarantor or resort to any security or other means of obtaining payment of any of the Guaranteed Obligations. Payments by the Guarantors under this Guaranty may be required to be made on any number of occasions.
(c) No payment or payments made by any of the Borrowers or any of their Subsidiaries or any other Person or received or collected by the Administrative Agent or any Secured Party from any of the Borrowers or any of their Subsidiaries or any other Person by virtue of any action or proceeding or any setoff or appropriation or application at any time or from time to time in reduction of or in payment of the Guaranteed Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder (other than payment in full in cash of the Guaranteed Obligations or, in the case of Guaranteed Obligations other than to Term Loan B Agent and Term Loan B Lenders, cash collateralization thereof (including without limitation by way of letter of credit) to satisfaction of Administrative Agent) which shall, notwithstanding any such payment indefeasible or payments other than payments in cash made by such Guarantor in respect of the Guaranteed Obligations or payments in cash received or collected from such Guarantor in respect of the Guaranteed Obligations or cash collateralization to the extent described above, remain liable for the Guaranteed Obligations, until the termination of this Guaranty in accordance with Section 6 hereof.
(d) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent and/or the other Guaranteed Creditorson account of its liability hereunder, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by it will notify the Administrative Agent and the other Guaranteed Creditors Secured Parties in collecting any of the Obligations. If a claim writing that such payment is ever made upon any Guaranteed Creditor under this Guaranty for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeepurpose.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Documentation Agent, the Collateral Agent Agent, the Issuing Lender and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and or Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by each of the Parent, Arlington and GMSC Parent Guarantors from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and or Other Hedging Agreements, each of the Parent, Arlington and GMSC Parent Guarantors hereby agrees with the Guaranteed Creditors as follows: Each of the ParentParent Guarantor, Arlington jointly and GMSC severally, hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the ParentParent Guarantors, Arlington jointly and GMSCseverally, unconditionally and irrevocably, irrevocably promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and or the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, event each of the Parent, Arlington and GMSC Parent Guarantors agrees that any such judgment, decree, order, settlement or compromise shall be binding upon each of the Parent, Arlington or GMSC, as the case may beParent Guarantors, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and each of the Parent, Arlington or GMSC, as the case may be, Parent Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to induce the Administrative each Agent, the Collateral Agent Agent, -------- the Issuing Lenders and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and or Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC each Parent Guarantor from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and or Other Hedging Agreements, each of the Parent, Arlington and GMSC Parent Guarantor hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC each Parent Guarantor hereby unconditionally and irrevocably irrevocably, and jointly and severally, guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the ParentParent Guarantor irrevocably and unconditionally, Arlington and GMSC, unconditionally jointly and irrevocablyseverally, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and or the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, event each of the Parent, Arlington and GMSC Parent Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may besuch Parent Guarantor, notwithstanding any revocation of this Holdings Parents Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, such Parent Guarantor shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee. This Parents Guaranty is a guaranty of payment and not collection.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Collateral Agent Agents and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. This Guaranty is a guaranty of payment and not of collection. This Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Trizec from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington and GMSC Trizec hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Trizec hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCTrizec, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerBorrowers), then and in such event, each of the Parent, Arlington and GMSC event Trizec agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beTrizec, notwithstanding any revocation of this Holdings Trizec Guaranty or other instrument evidencing any liability of the BorrowerBorrowers, and the Parent, Arlington or GMSC, as the case may be, Trizec shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to induce the Administrative each Agent, the Collateral Agent Agent, each Issuing Lender and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into and/or maintain Interest Rate Protection Agreements and Other Hedging Currency Agreements (including the Existing Swap Agreements) and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into and/or maintenance of such Interest Rate Protection Agreements and Other Hedging Currency Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Sources: Credit Agreement (Dominos Inc)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Revolving Loans and the Term Loan, the issuance of the Letters of Credit, and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group and the Bank Product Providers, together with any and all reasonable documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group and the Bank Product Providers, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group and the Bank Product Providers) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guarantied hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group or any Bank Product Provider with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 1 contract
Guaranty. In order to induce the Administrative each Agent, the Collateral Agent Agent, any Issuing Bank and the Lenders Banks to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and or Other Hedging Agreements Agreements, and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and or Other Hedging Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, Holdings unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and or the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Guarantor hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, guaranties the full and prompt payment and performance when due, whether upon maturity, by acceleration or otherwise, and at all times thereafter, of any and all of the present and future Obligations of the any type or nature of Borrower or any other Person (including, without limitation, any other Guarantor) to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting Lenders arising under or related to this Agreement or any Other Document and/or any one or more of them, whether due or to become due, matured or unmatured, liquidated or unliquidated, or contingent or noncontingent, including obligations of performance as well as obligations of payment, including interest on any of the Obligations. If a claim is ever made upon foregoing whether accruing before or after any Guaranteed Creditor for repayment bankruptcy or recovery insolvency case or proceeding involving any Guarantor, Borrower or any other Person and, if interest on any portion of such obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, including such interest as would have accrued on any amount such portion of such obligations if such case or amounts received proceeding had not commenced, and further agrees to pay all expenses (including reasonable attorneys' fees and legal expenses) paid or incurred by Agent or any Lender in payment or on account of endeavoring to collect any of the Obligations foregoing, or any part thereof, and in enforcing the obligations of such Guarantor (collectively, the "Liabilities"). Each Guarantor agrees that, in the event of the dissolution, bankruptcy or insolvency of Borrower, or the inability or failure of Borrower to pay debts as they become due, or an assignment by Borrower for the benefit of creditors, or the commencement of any case or proceeding in respect of Borrower under any bankruptcy, insolvency or similar laws, and if such event shall occur at a time when any of the aforesaid payees repays Liabilities may not then be due and payable, Guarantor will pay to Agent, for the benefit of Agent and the Lenders, forthwith the full amount which would be payable hereunder by Guarantor if all or part Liabilities were then due and payable. This Guaranty shall in all respects be a continuing, absolute and unconditional guaranty of said amount by reason payment and performance (and not of collection), and shall remain in full force and effect (i) any judgmentnotwithstanding, decree or order without limitation, the dissolution of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerGuarantor), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Us Home & Garden Inc)
Guaranty. (a) In order to induce the Administrative Agentconsideration of good and valuable consideration, the Collateral Agent receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby irrevocably and unconditionally guarantees (the Lenders "Guaranty") to enter into this Agreement each Holder of a Security (other than in respect of the Amended Original Guaranty) authenticated and delivered by the Trustee and to extend credit hereunderthe Trustee and its successors and assigns, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition irrespective of the direct benefits to be received by validity and enforceability of this Indenture, the Parent, Arlington and GMSC from Securities or the continuation and conversion obligations of the Loans Company under this Indenture or the Securities, that: (w) the principal and premium (if any) of and interest on the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each Securities (other than in respect of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the Amended Original Guaranty) will be paid in full and prompt payment when due, whether upon at the maturity or interest payment date, by acceleration, call for redemption, Offer to Purchase or otherwise; (x) all other obligations of the Company to the Holders or the Trustee under this Indenture or the Securities (other than in respect of the amended Original Guaranty) will be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Securities (other than in respect of the Amended Original Guaranty); and (y) in case of any extension of time of payment or renewal of any Securities (other than in respect of the Amended Original Guaranty) or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, acceleration by acceleration, call for redemption, upon Offer to Purchase or otherwise, . Failing payment when due of any amount so guaranteed for whatever reason, each Guarantor shall be obligated to pay the same before failure so to pay becomes an Event of Default.
(b) Each Guarantor hereby agrees that its obligations with regard to this Guaranty shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any judgment against the Company or any other Guarantor, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of such Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or right to require the prior disposition of the assets of the Company to meet its obligations, protest, notice and all demands whatsoever and covenants that this Guaranty will not be discharged except by complete performance of the Obligations obligations contained in the Securities (other than in respect of the Borrower Amended Original Guaranty) and this Indenture (other than in respect of the Amended Original Guaranty).
(c) If any Holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any Custodian, Trustee, or similar official acting in relation to either the Company or such Guarantor, any amount paid by either the Company or any Guarantor to the Guaranteed CreditorsTrustee or such Holder, this Guaranty, to the extent theretofore discharged, shall be reinstated in full force and effect. If Each Guarantor agrees that it will not be entitled to any or right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Obligations obligations guaranteed hereby may be accelerated as provided in Section 7.2 for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company of the Borrower to obligations guaranteed hereby, and (ii) in the Guaranteed Creditors becomes event of any declaration of acceleration of those obligations as provided in Section 7.2, those obligations (whether or not due and payable) will forthwith become due and payable hereunderby the Guarantor for the purpose of this Guaranty.
(d) It is the intention of each Guarantor and the Company that the obligations of such Guarantor hereunder shall be in, each but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations in respect of the ParentGuaranty would be annulled, Arlington and GMSCavoided or subordinated to the creditors of any Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that the Guaranty was made without fair consideration and, unconditionally and irrevocablyimmediately after giving effect thereto, promises such Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of such indebtedness Guarantor under the Guaranty shall be reduced by such court if such reduction would result in the avoidance of such annulment, avoidance or subordination; provided, however, that any reduction pursuant to this paragraph shall be made in the Administrative Agent and/or the other Guaranteed Creditorssmallest amount as is strictly necessary to reach such result. For purposes of this paragraph, or order"fair consideration", on demand"insolvency", together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent "unable to pay its debts as they mature", "unreasonably small capital" and the other Guaranteed Creditors in collecting any effective times of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount reductions, if any, required by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise this paragraph shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeedetermined in accordance with applicable law.
Appears in 1 contract
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans Revolving Loans, the issuance of the Letters of Credit, and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to the Borrower, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment by each other Guarantor, the Borrower and any other Credit Party, when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors constituting Guarantied Obligations becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandSecured Parties, together with any and all reasonable documented out-of-pocket expenses which (including Secured Party Expenses) that may be incurred by the Administrative Agent and the or any other Guaranteed Creditors Secured Party in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Guarantied Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other Secured Party for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of the aforesaid payees Agent or any other Secured Party repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerBorrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Guarantied Obligations to Agent, for the benefit of the Secured Parties, whether or not due or payable by any Credit Party upon the occurrence of any of the events specified in Section 8.1(h) or (i) of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Secured Parties, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States. Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all Guarantied Obligations (including, without limitation, interest, reasonable fees, costs and expenses) that would be owed by any other obligor on the Guarantied Obligations but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding involving such other obligor because it is the intention of the Guarantors, the Agent and the Secured Parties that the Guarantied Obligations which are guaranteed by the Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve the Borrower or any other Guarantor or Credit Party of any portion of such Guarantied Obligations.
(c) Notwithstanding any other provision hereof, each Guarantor, and by its acceptance of this Guaranty, the Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Guarantied Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law to the extent applicable to this Guaranty and the Guarantied Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Agent, the other Secured Parties and the Guarantors hereby irrevocably agree that the Guarantied Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Guarantied Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance after giving full effect to the liability under such guaranty set forth in Section 2 hereof and its related contribution rights. To the fullest extent permitted by applicable law, this Section 2(c) shall be for the benefit solely of creditors and representatives of creditors of each Guarantor and not for the benefit of such Guarantor or the holders of any Equity Interest in such Guarantor.
(d) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent or any other Secured Party on account of the Obligations which Agent or any other Secured Party repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent or any other Secured Party, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(e) Each Guarantor shall be liable under its guaranty set forth in this Section 2, without any limitation as to amount, for all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or increasing the outstanding amount of the Loans or other Guarantied Obligations, whether or not any such increase is committed, contemplated or provided for by the Loan Documents or the Bank Product Agreement on the date hereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Secured Party in existence on the date of such revocation, (iv) no payment by any Guarantor, Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Secured Parties) and its successors, transferees, or assigns.
(f) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(g) Each of the Guarantors authorizes Agent and the other Secured Parties without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent or any other Secured Party regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(h) It is not necessary for Agent or any other Secured Party to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be Guarantied Obligations hereunder.
(i) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any Secured Party with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) the validity, perfection, non-perfection or lapse in perfection, priority or avoidance of any security interest or lien, the release of any or all collateral securing, or purporting to secure, the Guarantied Obligations or any other impairment of such collateral;
(iii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any renewal, extension or acceleration of or any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iv) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(v) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent or any other Secured Party;
(vi) 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 Guarantied Obligations or any security therefor;
(vii) any failure or omission to assert or enforce or agreement or election not to assert or enforce, delay in enforcement, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under any Loan Document or any Bank Product Agreement, at law, in equity or otherwise) with respect to the Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Obligations;
(viii) any exercise of remedies with respect to any security for the Guarantied Obligations (including, without limitation, any collateral, including the Collateral, securing or purporting to secure any of the Guarantied Obligations) at such time and in such order and in such manner as the Agent and the Secured Parties may decide and whether or not every aspect thereof is commercially reasonable and whether or not such action constitutes an election of remedies;
(ix) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties, and without limiting the generality of the foregoing or
Appears in 1 contract
Sources: Revolving Credit Agreement (Turning Point Brands, Inc.)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: (a) Each of the ParentGuarantors, Arlington jointly and GMSC severally, hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment and performance when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderand the Borrower shall fail to pay the same, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Administrative Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLenders, together with any and all reasonable and documented out-of-pocket expenses which that may be incurred by the Administrative Agent and or any of the other Guaranteed Creditors Lenders in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any Collateral for the obligations of the Guarantors under this Agreement). If a claim is ever made upon Administrative Agent or any Guaranteed Creditor of the Lenders for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of Administrative Agent or any of the aforesaid payees Lenders repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerBorrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty Agreement or other instrument evidencing any liability of the Borrowerany Guarantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Administrative Agent, for the benefit of the Lenders, whether or not due or payable by Borrower upon the occurrence of any Event of Default under the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Administrative Agent, for the benefit of the Lenders, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by Borrower, any other Guarantor or by any other Person, and the liability of EAST\127462007.8 3 each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Guarantor, (iii) any payment made to Administrative Agent or any of the Lenders on account of the Obligations which Administrative Agent, or such Lender repays to any Guarantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Administrative Agent or any Lender, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Agreement guarantees the payment and performance of all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Agreement as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Administrative Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Administrative Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Lender in existence on the date of such revocation, (iv) no payment by any Guarantor, Borrower, or from any other source, prior to the date of Administrative Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Agreement shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Administrative Agent (for the benefit of the Lenders) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of the other Guarantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against the other Guarantor or any other Person and whether or not any other Guarantor or any other Person be joined in any such action or actions. Each of the Guarantors EAST\127462007.8 4 waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Guarantor or other circumstance which operates to toll any statute of limitations as to any Guarantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Administrative Agent and the Lenders without notice or demand, and without affecting, impairing or discharging any such Guarantor from its obligations hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Agreement shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Agreement) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Guarantor;
(iv) release or substitute any one or more endorsers, guarantors, any Guarantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Agreement) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Guarantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Guarantor to Administrative Agent or any Lender regardless of what liability or liabilities of such Guarantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Documents, or any of the instruments or agreements referred to herein or therein, EAST\127462007.8 5 or otherwise amend, modify, or supplement this Agreement, any other Loan Documents, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Agreement.
(g) It is not necessary for Administrative Agent or any Lender to inquire into the capacity or powers of any of the Borrower, Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall constitute Guarantied Obligations hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any Lender with respect thereto to the maximum extent permitted by law. The liability of each Guarantor under this Agreement shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Documents or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Obligations or Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Documents, including any increase in the Obligations or Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Obligations or Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Administrative Agent or the Lenders;
(v) 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 Obligations or Guarantied Obligations or any security therefor; EAST\127462007.8 6
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Lender including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Guarantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of Borrower or any Guarantor;
(viii) any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding relating to such Guarantor, Borrower, any other Loan Party or any other Person, or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding;
(ix) any statement, representation or warranty made or deemed made by or on behalf of Borrower, any Guarantor or any other Loan Party under any Loan Document or other document or instrument evidencing or relating to any Guarantied Obligations, or any amendment hereto or thereto, proves to have been incorrect or misleading in any respect; or
(x) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other guarantor or surety.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Borrower from the continuation and conversion proceeds of the Loans and Loans, the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Guarantors hereby agrees agree with the Guaranteed Creditors as follows: Each of the Parent, Arlington Guarantors hereby and GMSC hereby unconditionally and irrevocably guarantees guarantee to the Guaranteed Creditors, as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, promises promise to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of event the Parent, Arlington and GMSC agrees Guarantors agree that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of make the Loans and the entering into Issuers to issue Letters of such Interest Rate Protection Agreements and Other Hedging AgreementsCredits, each of the ParentGuarantor hereby absolutely, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, the full and prompt punctual payment when due, whether upon maturityat stated maturity or earlier, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Loan Document, of all the Obligations, whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, and whether enforceable or unenforceable as against the Borrower, now or hereafter existing, or due or to become due, including principal, interest (i) any judgment, decree including interest at the contract rate applicable upon default accrued or order accruing after the commencement of any court proceeding under the Bankruptcy Code, whether or administrative body having jurisdiction over not such payee interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes an absolute guaranty of payment and performance and not of collection.
(b) Each Guarantor further agrees that, if any payment made by Borrower or any other person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of Collateral are required to be returned by any Guaranteed Party to the Borrower, its property estate, trustee, receiver or any other party, including any Guarantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, any such Guarantor's liability hereunder (iiand any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made or, if prior thereto this Guaranty shall have been cancelled or surrendered (and if any settlement Lien or compromise other Collateral securing such Guarantor's liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such claim effected by such payee with any such claimant (including the Borrower), then and Guarantor in such event, each respect of the Parent, Arlington and GMSC agrees that amount of such payment (or any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty Lien or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if Collateral securing such amount had never originally been received by any such payeeobligation).
Appears in 1 contract
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Loans and by virtue of the entering into of such Interest Rate Protection Agreements and Other Hedging Agreementsfinancial accommodations to be made to Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes constituting Guarantied Obligations become due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group, together with any and all reasonable documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Guarantied Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of Agent or any other member of the aforesaid payees Lender Group repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Guarantied Obligations to Agent, for the benefit of the Lender Group, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking (other than payment in full of the Guarantied Obligations), (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent or any other member of the Lender Group on account of the Obligations which Agent or such other member of the Lender Group repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (iv) any action or inaction by Agent or any other member of the Lender Group or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent's receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guaranteed hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not an action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent and the other members of the Lender Group without notice or demand (other than any notice expressly required to be provided hereunder or under any other Loan Document and in each case in accordance with any applicable terms and conditions hereof or any other applicable Loan Document), and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon), or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent or any other member of the Lender Group regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty (other than a defense of payment in full of the Guarantied Obligations).
(g) It is not necessary for Agent or any other member of the Lender Group to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver, supplement, restatements, extension, novation, renewal, replacements, or continuation of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent or any other member of the Lender Group;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group including any defense based upon an impairment or elimination of such Guarantor's rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any Grantor or any other guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, partnership or other relevant structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Hudson Technologies Inc /Ny)
Guaranty. (i) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC each Guarantor from the continuation and conversion proceeds of the Loans Term Loan, the Revolving Loans, the issuance of the Letters of Credit, and the entering into of such Interest the Bank Products or Rate Protection Agreements Contracts and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrower or any other Loan Party, each of the ParentGuarantor, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, an accommodation party the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors constituting Guarantied Obligations becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSC, Guarantor unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demandLender, together with any and all reasonable documented out-of-pocket expenses which that may be incurred by the Administrative Agent and the other Guaranteed Creditors Lender in demanding, enforcing, or collecting any of the Obligations. Guarantied Obligations (including the enforcement of any Collateral for such Guarantied Obligations or any Collateral for the obligations of the Guarantors under this Security Agreement).
(ii) If a any claim is ever made upon any Guaranteed Creditor Lender for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of the aforesaid payees Lender repays all or part of said amount by reason of (iA) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (iiB) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerBorrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantor agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may besuch Guarantor, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty Security Agreement or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, each Guarantor shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee▇▇▇▇▇▇.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Thorne Healthtech, Inc.)
Guaranty. In order The Guarantor hereby unconditionally guaranties to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when dueand performance of (a) all liabilities and obligations and Indebtedness, whether upon maturitydirect or indirect, acceleration matured or otherwiseunmatured, of any and all of the Obligations primary or secondary, certain or contingent, of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due (including without limitation, costs and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors Lenders in collecting attempting to collect or enforce any of the foregoing), accrued in each case to the date of payment, and (b) the performance of all other agreements, covenants and conditions of the Borrower with respect thereto set forth in this Agreement and all other Loan Documents. The responsibilities and obligations of the Borrower to the Administrative Agent and the Lenders described in the preceding sentence are hereinafter referred to collectively as the "Guaranteed Obligations. If a claim ." The guaranty pursuant to this Section 2.16 is ever made an absolute, unconditional and continuing guaranty of the full and punctual payment and performance by the Borrower of the Guaranteed Obligations and not of collectability of the Guaranteed Obligations, and is in no way conditioned upon any requirement that the Administrative Agent or the Lenders first attempt to collect any of the Guaranteed Creditor for repayment Obligations from the Borrower or recovery resort to any security or other means of any amount or amounts received in obtaining payment or on account of any of the Guaranteed Obligations which the Administrative Agent or the Lenders now has or may acquire after the date hereof, or upon any other contingency whatsoever. Upon any default by the Borrower in the full and any punctual payment and performance of the aforesaid payees repays all Guaranteed Obligations, the liabilities and obligations of the Guarantor hereunder shall, at the option of the Administrative Agent, become forthwith due and payable to the Administrative Agent and the Lenders without demand or part of said amount by reason of (i) any judgment, decree or order notice of any court nature, all of which are expressly waived by the Guarantor. Payments by the Guarantor under this Section 2.16 may be required by the Administrative Agent or administrative body having jurisdiction over such payee or the Lenders on any number of its property or (ii) any settlement or compromise occasions. The Guarantor waives presentment, demand, protest, notice of acceptance, notice of Guaranteed Obligations incurred and all other notices of any such claim effected kind, all defenses which may be available by such payee with virtue of any such claimant (including the Borrower)valuation, then and in such eventstay, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty moratorium law or other instrument evidencing similar law now or hereafter in effect, any liability right to require the marshaling of assets of the Borrower, and all suretyship defenses generally. Without limiting the Parentgenerality of the foregoing, Arlington the Guarantor agrees to the provisions of any instrument evidencing, securing or GMSCotherwise executed in connection with any Guaranteed Obligations and agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by any rescissions, waivers, amendments or modifications of any of the terms or provisions of any agreement evidencing securing or otherwise executed in connection with any Guaranteed Obligation. Until the payment and performance in full of all Guaranteed Obligations and any and all obligations of the Borrower to any affiliate of the Administrative Agent or the Lenders, the Guarantor shall not exercise any rights against the Borrower arising as a result of payment by the Guarantor hereunder, by way of subrogation or otherwise. The payment of any amounts due with respect to any indebtedness of the Borrower now or hereafter held by the Guarantor is hereby subordinated to the prior payment in full of the Guaranteed Obligations. All of the Guaranteed Obligations shall at all times be secured by first priority, perfected Liens upon all of the real and personal property of the Guarantor included in the Collateral. At such time as any Person becomes a Subsidiary of the Borrower (other than a Foreign Subsidiary as provided below), or of any existing Subsidiary of the Borrower, such Person shall become a party to this Agreement as a Guarantor and shall execute and deliver all documents and instruments to Administrative Agent as Administrative Agent may reasonably request in order for such party to become a Guarantor, to guaranty the Guaranteed Obligations under this Agreement, and to secure such guaranty with all of the real and personal property of such Person. Notwithstanding the foregoing, any Subsidiary that is a Foreign Subsidiary shall only be required to become a Guarantor hereunder at such time as the case may beannualized gross income of such Foreign Subsidiary exceeds $10,000,000. In such event, such Foreign Subsidiary shall both become a Guarantor hereunder upon such terms as the Administrative Agent and the Borrower shall agree in order to minimize any adverse federal income tax consequences to Borrower resulting from such Foreign Subsidiary guaranteeing the Guaranteed Obligations and securing such guaranty with all of the real and personal property of such Foreign Subsidiary. The obligations of the Guarantor under this Section 2.16 shall be joint and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeseveral.
Appears in 1 contract
Sources: Credit Agreement (Presstek Inc /De/)
Guaranty. In order to induce the Administrative AgentTherefore, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunderfor value received, and induce in consideration of any loan, advance or financial accommodation of any kind whatsoever heretofore, now or hereafter made, given or granted to Borrower by Agent or any Lender pursuant to the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoan Documents, each of the ParentGuarantor jointly and severally, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentprimary obligor, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, guaranties the full and prompt payment when due, whether upon maturityat maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all Obligations (as defined in the Credit Agreement) of Borrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, joint or several, now or hereafter existing, or due or to become due, and howsoever owned, held or acquired by Agent or any Lender including without limitation any amounts which would become due but for the operation of the automatic stay under Section 362(a) of Chapter 11 of Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as amended (the "Bankruptcy Code"), or the operation of Sections 502(b) and 506(b) of the Bankruptcy Code or any other provision of the Bankruptcy Code after the commencement of any Insolvency Proceeding with respect to Borrower, regardless of whether such interest is allowed by the court having jurisdiction over such proceedings (all such indebtedness, liabilities and all of the Obligations of the Borrower obligations being hereinafter referred to the Guaranteed Creditorsas "Borrower's Obligations"). If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due Each Guarantor further jointly and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises severally agrees to pay such indebtedness all reasonable costs and expenses including, without limitation, all court costs and reasonable Attorney Costs paid or incurred by Agent or any Lender in endeavoring to the Administrative Agent and/or the other Guaranteed Creditorscollect all or any part of Borrower's Obligations from, or orderin prosecuting any action against, on demandany Guarantor. Each Guarantor hereby agrees that its obligations under this Master Corporate Guaranty shall be unconditional, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason irrespective of (i) the validity or enforceability of Borrower's Obligations or any judgmentpart thereof, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or Loan Documents, (ii) any settlement or compromise the absence of any such claim effected attempt to collect Borrower's Obligations from Borrower or any other guarantor or other action to enforce the same, (iii) the waiver or consent by such payee Agent or any Lender with respect to any such claimant provision of any Loan Document, (including iv) the failure by Agent to take any steps to perfect and maintain its Lien on, or to preserve its rights to, any security or collateral for Borrower)'s Obligations, then and (v) Agent's election, in such event, each any proceeding instituted under the Bankruptcy Code of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation application of this Holdings Guaranty or other instrument evidencing any liability Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a Lien by Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code, (vii) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Agent's or any Lender's claim(s) for repayment of Borrower's Obligations, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid (viii) any other circumstance which might otherwise constitute a legal or recovered to the same extent as if such amount had never originally been received by any such payeeequitable discharge or defense of Borrower or a guarantor.
Appears in 1 contract
Sources: Master Corporate Guaranty (Playboy Enterprises Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the Each Credit Party (other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC than Excell Canada) hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, guaranties the full and prompt payment and performance when due, whether upon maturity, by acceleration or otherwise, and at all times thereafter, of any and all present and future Secured Debt of the Obligations any type or nature of the Borrower any Credit Party to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the Lenders arising under or related to this Agreement or any other Guaranteed Creditors in collecting Loan Document and/or any one or more of them, whether due or to become due, matured or unmatured, liquidated or unliquidated, or contingent or noncontingent, including obligations of performance as well as obligations of payment, including interest on any of the Obligations. If a claim is ever made upon foregoing whether accruing before or after any Guaranteed Creditor for repayment bankruptcy or recovery insolvency case, proposal or proceeding involving any Credit Party or any other Person and, if interest on any portion of such obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, including such interest as would have accrued on any amount such portion of such obligations if such case or amounts received proceeding had not commenced, and further agrees to pay all expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by Agent in payment or on account of endeavoring to collect any of the Obligations foregoing, or any part thereof, and in enforcing the obligations of such Credit Party (collectively, the “Liabilities”). Each Credit Party (other than Excell Canada) agrees that, in the event of the dissolution, bankruptcy or insolvency of any Credit Party, or the inability or failure of any Credit Party to pay debts as they become due, or an assignment by Borrowers for the benefit of creditors, or the commencement of any case or proceeding in respect of Borrowers under any bankruptcy, insolvency or similarDebtor Relief lLaws, and if such event shall occur at a time when any of the aforesaid payees repays Liabilities may not then be due and payable, such Credit Party will pay to Agent, for the benefit of the Lenders, forthwith the full amount which would be payable hereunder by such Credit Party if all or part Liabilities were then due and payable. This Guaranty shall in all respects be a continuing, absolute and unconditional guaranty of said amount by reason payment and performance (and not of collection), and shall remain in full force and effect (i) any judgmentnotwithstanding, decree or order without limitation, the dissolution of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerCredit Party), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC Guarantor hereby unconditionally and irrevocably guarantees as primary obligor and not merely as suretyto each Noteholder, the full following obligations, howsoever created and prompt payment when whether or not direct or indirect, absolute or conditional or now existing or hereafter arising (collectively, the “Guaranteed Obligations”):
(a) the due, whether upon maturitypunctual and full payment by Obligor of all principal amounts and accrued interest (including, acceleration or otherwisewithout limitation, amounts payable in case of any and all of the Obligations of the Borrower default) to be paid by Obligor to such Noteholder pursuant to the Guaranteed Creditors. If any Note issued to him or all of her, as and when the Obligations of the Borrower to the Guaranteed Creditors becomes same shall become due and payable hereunderin accordance with the terms thereof (whether at stated maturity, each by required prepayment, redemption, declaration, acceleration, demand or otherwise); and
(b) the due, prompt and faithful performance of, and compliance with, all other agreements, obligations, covenants, indemnities, terms, conditions and undertakings of Obligor in favor of such Noteholder contained in such Note in accordance with the Parent, Arlington and GMSC, unconditionally and irrevocably, promises terms thereof. Guarantor further agrees to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with reimburse any and all reasonable documented out-of-pocket costs and expenses which (including reasonable fees and disbursements of counsel) that may be paid or incurred by the Administrative Agent and the other Guaranteed Creditors a Noteholder in collecting any Guaranteed Obligations and/or in preserving or enforcing any of his or her rights under this Guaranty or in connection with the Guaranteed Obligations. If This Guaranty is a claim guaranty of payment, performance and compliance and not of collectability, is ever made in no way conditioned or contingent upon any Guaranteed Creditor for repayment attempt to collect from or recovery of enforce performance or compliance by Obligor or upon any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such other event, each of the Parentcontingency or circumstance whatsoever, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable against Guarantor without regard to the aforesaid payees hereunder for the amount so repaid validity or recovered to the same extent as if enforceability of such amount had never originally been received by any such payeeNote.
Appears in 1 contract
Sources: Parent Guaranty (Fti Consulting Inc)
Guaranty. In order (i) For value received and in consideration of any loan, advance or financial accommodation of any kind whatsoever heretofore, now or hereafter made, given or granted to induce the Administrative AgentBorrower by the Banks, the Collateral Agent and Guarantor unconditionally guarantees for the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition benefit of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, Banks the full and prompt payment when due, whether upon maturityat maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of any and all of the Obligations (including, without limitation, interest accruing following the filing of a bankruptcy petition by or against the Borrower, at the applicable rate specified in the Credit Agreement, whether or not such interest is allowed as a claim in bankruptcy). To the extent that any of the Borrower outstanding Obligations consist of letters of credit issued pursuant to the Guaranteed CreditorsCredit Agreement, the Banks, the Issuing and Paying Agent and the Administrative Agent may, but shall not be obligated to, hold a portion of the amounts paid under this Guaranty as cash collateral for the Borrowers' reimbursement obligations with respect to any such letter of credit, to be applied against such reimbursement obligations when and if a draw is made on any such letter of credit, or against any such other Obligations when the same become due and payable; PROVIDED, that if any such letter of credit expires undrawn, and the Banks, the Issuing and Paying Agent and the Administrative Agent have not applied such cash collateral in full to other Obligations as provided above, then the Banks, the Issuing and Paying Agent and the Administrative Agent will return such cash collateral to the Guarantor. If Any such cash collateral will be invested by the Administrative Agent or the Issuing and Paying Agent in overnight funds, and any or all interest earned will become part of the cash collateral and will be returned with the cash collateral to the extent not applied to any other Obligations, when and if the cash collateral is to be returned to the Guarantor as provided above.
(ii) At any time after the occurrence of an Event of Default, the Guarantor shall pay to the Issuing and Paying Agent, for the benefit of the Banks, on demand and in immediately available funds, the full amount of the Obligations of the Borrower (including any portion thereof which is not yet due and payable). The Guarantor further agrees to pay to the Guaranteed Creditors becomes due Issuing and payable hereunder, each of Paying Agent and reimburse the Parent, Arlington Issuing and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Paying Agent and/or the other Guaranteed Creditors, or orderfor, on demanddemand and in immediately available funds, together with any (a) all losses (including, without limitation, lost profits), fees, costs and expenses (including, without limitation, all reasonable documented out-of-pocket expenses which may be court costs and attorneys' and paralegals' fees, costs and expenses) paid or incurred by the Administrative Agent, the Issuing and Paying Agent and the other Guaranteed Creditors in collecting or any of the Obligations. If a claim is ever made upon Banks in: (1) endeavoring to collect all or any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any part of the Obligations from, or in prosecuting any action against, the Borrower or the Guarantor relating to the Credit Agreement, this Guaranty or the transactions contemplated thereby; (2) taking any action with respect to any security or collateral securing the Obligations or the Guarantor's obligations hereunder; and any (3) preserving, protecting or defending the enforceability of, or enforcing, this Guaranty or their respective rights hereunder (all such costs and expenses are hereinafter referred to as the "Expenses") and (b) interest on (1) the Obligations which do not constitute interest, (2) to the extent permitted by applicable law, the Obligations which constitute interest, and (3) the Expenses, from the date of demand under this Guaranty until paid in full at the per annum rate of interest described in SECTION 2.07(c) of the aforesaid payees repays all or part of said amount by reason of Credit Agreement (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower"Interest Rate"), then and in such event, each of the Parent, Arlington and GMSC . The Guarantor hereby agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation this Guaranty is an absolute guaranty of this Holdings Guaranty or other instrument evidencing any liability payment and is not a guaranty of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeecollection.
Appears in 1 contract
Sources: Guaranty (Ohm Corp)
Guaranty. In order to induce the Administrative AgentGFC hereby unconditionally, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunderabsolutely, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally continuingly and irrevocably guarantees guarantees, as a primary obligor and not merely as a surety, to Purchasers and the Purchaser Indemnified Parties the full and prompt payment when timely payment, if any, and performance by each Seller of all of their covenants, agreements, obligations and liabilities arising under or pursuant to this Agreement and the other Transaction Documents, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, whether including all indemnification obligations (collectively, the “Obligations”). If any of the Obligations shall not be paid or performed according to their terms, GFC shall immediately pay, perform, or cause the performance of the same, this Guaranty being a guaranty of full payment and performance and not of collectibility. This Guaranty is an absolute, unconditional, and continuing guaranty and is in no way conditioned upon maturityany requirement that Purchasers first attempt to collect payment or seek performances of any of the Obligations from either or both Sellers or any other obligor or guarantor, acceleration or otherwiseresort to any other security or other means of obtaining payment or performance of any of the Obligations or upon any other condition or contingency whatsoever. GFC’s obligations under this Article 12 shall in no way be impaired, affected, reduced or released by reason of the voluntary or involuntary liquidation, dissolution, sale, or other disposition of all or substantially all the assets of either or both Sellers or the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings or any other inability to pay or perform affecting, either or both Sellers or any of their respective assets. Purchasers shall have the right, without giving notice to or obtaining the consent of GFC and without relieving GFC of any liability hereunder, to deal with either or both Sellers, in such manner as Purchasers, in their sole and absolute discretion, deems fit and proper, and to this end GFC hereby gives to Purchasers the full authority in its discretion to do any and all of the Obligations of following things, without notice to, or obtaining the Borrower consent of, GFC: (a) grant waivers, extensions, renewals or other indulgences under any Transaction Document or any other document relating to the Guaranteed Creditors. If any Obligations; (b) waive the payment or all performance of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon ; (c) modify or amend any Guaranteed Creditor of the terms or provisions contained in any Transaction Document or any other document relating to the Obligations; (d) vary, exchange, release or discharge, wholly or partially, or delay in or abstain from perfecting or enforcing any security for repayment or recovery guaranty of the Obligations by any amount or amounts received in other person; (e) accept partial payment or on account performance of any of the Obligations; or (f) compromise or make any settlement or other arrangement with either or both Sellers or any other guarantor of the Obligations. GFC hereby consents to all of the terms and provisions of each Transaction Document, as the same may be from time to time amended or modified in accordance with their terms. GFC hereby irrevocably waives: (a) notice of acceptance of this Guaranty; (b) notice of any amendment or any change in the terms of the Transaction Documents or any other documents relating to the Obligations; (c) notice of any breach, violation or default under or in connection with any Transaction Document or any other documents relating to the Obligations or any other present or future agreement relating directly or indirectly thereto; (d) demand for performance or observance of and enforcement of any provisions of, or any pursuit or exhaustion of, any rights or remedies against the either of both Sellers or any other guarantor or obligor who becomes liable in any manner for any of the aforesaid payees repays all Obligations, and any requirements of diligence or promptness on the part of said amount by reason Purchasers in connection therewith; (e) diligence, presentment, protest, notice of (i) any judgment, decree or order dishonor and notice of default in the payment of any court amount at any time payable by the either of both Sellers under or administrative body having jurisdiction over such payee in connection with the Transaction Documents or any other documents relating to the Obligations; and (f) all defenses based on suretyship or impairment of its property collateral and any defenses that either or (ii) any settlement or compromise both Sellers may assert on the Obligations, including failure of any such claim effected by such payee with any such claimant (including the Borrower)consideration, then breach of warranty, fraud, statute of frauds, bankruptcy, lack of legal capacity, statute of limitations, creditor liability and in such event, each of the Parent, Arlington accord and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSCsatisfaction. GFC further agrees, as the case may beprincipal obligor and not as guarantor only, notwithstanding any revocation to pay forthwith upon demand, all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred or expended in connection with the enforcement of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerguaranty, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as together with interest on amounts recoverable under this guaranty if such amount had never originally been received interest is awarded by a court of competent jurisdiction. GFC’s successors and assigns shall be bound by the terms and conditions of this Guaranty. For a period of five years from the Closing, GFC shall not consolidate with, merge with or into, or sell all or substantially all of its properties or assets to any Person; provided, that nothing contained in this paragraph shall be deemed to prevent GFC from consolidating with, merging with or into, or selling all or substantially all of its properties or assets to any Person so long as (a) such payeePerson assumes the obligations of GFC under this Agreement by operation of law in connection with such transaction or (b) if such Person does not assume the obligations of GFC under this Agreement by operation of law in connection with such transaction, such Person expressly assumes the obligations of GFC under this Agreement and expressly agrees to be bound by all other provisions applicable to GFC under this Agreement.
Appears in 1 contract
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Revolving Loans and the Term Loan, the issuance of the Letters of Credit, and the entering into of such Interest Rate Protection the Bank Product Agreements and Other Hedging Agreementsby virtue of the financial accommodations to be made to Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the Administrative Agent and/or benefit of the other Guaranteed Creditors, or order, on demandLender Group and the Bank Product Providers, together with any and all reasonable documented out-of-pocket expenses which (including Lender Group Expenses) that may be incurred by Agent or any other member of the Administrative Agent and the other Guaranteed Creditors Lender Group or any Bank Product Provider in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any Guaranteed Creditor other member of the Lender Group or any Bank Product Provider for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of Agent or any other member of the aforesaid payees Lender Group or any Bank Product Provider repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement settlement, or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Grantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Agent, for the benefit of the Lender Group and the Bank Product Providers, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group and the Bank Product Providers, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent, any other member of the Lender Group, or any Bank Product Provider on account of the Obligations which Agent, such other member of the Lender Group, or such Bank Product Provider repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent, any other member of the Lender Group, or any Bank Product Provider, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group or any Bank Product Provider in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group and the Bank Product Providers) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group, and the Bank Product Providers without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent, any other member of the Lender Group, or any Bank Product Provider regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Bank Product Agreement, or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Bank Product Agreement, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent, any other member of the Lender Group, or any Bank Product Provider to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be Guarantied hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any member of the Lender Group or any Bank Product Provider with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent, any other member of the Lender Group, or any Bank Product Provider;
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby The Guarantor unconditionally and irrevocably guarantees to Buyer:
(a) the prompt and complete payment in full as primary obligor and not merely as surety, the full when due and prompt payment when due, whether upon maturity, acceleration or otherwise, payable by any Seller Party of any and all amounts payable by any Seller Party pursuant to any of the Obligations of Purchase Agreement and the Borrower Ancillary Agreements, subject to the terms and limitations thereof; and
(b) the prompt and complete performance in full by each Seller Party of its other obligations under the terms of each Transaction Agreement to which it is a party, subject to the terms and limitations thereof (the amounts payable by, and all other obligations of, the Seller Parties under the Transaction Agreements, being sometimes collectively referred to herein as “Guaranteed CreditorsObligations”). This Guaranty is a guaranty of payment, performance and compliance and not of collectibility and is in no way conditioned or contingent upon any attempt to collect from or enforce performance or compliance by any Seller Party or upon any other event or condition whatsoever. If for any reason whatsoever any Seller Party shall fail or all of be unable duly, punctually and fully to pay such amounts as and when the Obligations of the Borrower to the Guaranteed Creditors becomes same shall become due and payable hereunderor to perform or comply with any other Guaranteed Obligation (in each case after the expiration of any cure periods in respect of such failure or inability expressly set forth in the Transaction Agreement under which the applicable Guaranteed Obligation arises), each the Guarantor shall forthwith pay or cause to be paid such amounts to Buyer or an Affiliate of Buyer entitled thereto under the terms of such Transaction Agreement, in lawful money of the ParentUnited States, Arlington at the place specified in the applicable Transaction Agreement, or perform or comply with such Guaranteed Obligations or cause such Guaranteed Obligations to be performed or complied with together with interest (in the amounts and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditorsextent required of such Seller Party under such Transaction Agreement) on any amount due and owing from such Seller Party. The Guarantor, or order, on promptly after demand, together with any shall reimburse Buyer for all costs and all expenses of collecting such amounts or otherwise enforcing this Guaranty, including, without limitation, the reasonable documented out-of-pocket fees and expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeecounsel.
Appears in 1 contract
Sources: Guaranty (Allstate Corp)
Guaranty. In order Each Guarantor, jointly and severally with each other Guarantor, unconditionally guaranties all obligations of Borrower under the Note, whether now existing or hereafter incurred or created, joint or several, direct or indirect, absolute or contingent, due or to induce become due, matured or unmatured, liquidated or unliquidated, arising by contract, operation of law or otherwise, including (a) all principal and interest (including any interest on the Administrative AgentNote) which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Company or would have accrued but for the application of provisions of the Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101-1330), as amended or supplemented from time to time, and any successor statute, and any and all rules issued or promulgated in connection therewith (“Bankruptcy Code”); (b) all other amounts (including any fees or expenses) payable by Borrower under the Note or the Loan Agreement and (c) any renewals, refinancings or extensions of any of the foregoing (collectively, the Collateral Agent “Obligations”), when due and at the Lenders to enter into this Agreement place specified therefor. This guaranty by each Guarantor is an absolute, unconditional and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition continuing guaranty of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt punctual payment when due, whether upon maturity, acceleration or otherwise, of any and all performance by Borrower of the Obligations and not of the Borrower their collectibility only and is in no way conditioned upon any requirement that SNH first attempt to the Guaranteed Creditors. If collect any or all of the Obligations from Borrower or any other Guarantor or resort to any security or other means of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in obtaining payment or on account of any of the Obligations and which SNH now has or may acquire after the date hereof, or upon any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrowercontingency whatsoever, and the Parentobligations of each Guarantor hereunder shall not be subject to any counterclaim, Arlington setoff, recoupment or GMSCdefense based upon any claim such Guarantor may have against SNH, as Borrower or any other Guarantor. Upon any default by Borrower in the case may befull and punctual payment and performance of the Obligations or any part thereof, shall both the Guarantors will promptly pay or cause to be and remain liable paid to the aforesaid payees hereunder for SNH, the amount so repaid or recovered of such Obligations which is then due and payable. Payments by the Guarantors hereunder may be required to the same extent as if such amount had never originally been received by be made on any such payeenumber of occasions.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent(a) The Company, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary principal obligor and not merely as surety, hereby irrevocably and unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, that: (i) principal of, premium, if any, and interest on the Securities (including any Additional Amounts payable in respect thereof) will be promptly paid in full and prompt payment when due, subject to any applicable grace period, whether on the relevant Stated Maturity, on an interest payment date, by acceleration, by call for redemption or upon maturityrepurchase or purchase pursuant to Article 3, acceleration Sections 4.06, 4.07 or 4.10 or otherwise and interest on the overdue principal and premium, if any, and purchase price and interest on any interest, to the extent lawful (in each case Post-Petition Interest relating to the Issuers or the Company), on the Securities and all other amounts payable under the Securities and obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed when the same shall become due and payable, whether on the relevant maturity date, upon acceleration, by call for redemption, upon repurchase or purchase pursuant to a Change of Control, any Asset Disposition, any repurchase of Securities pursuant to Section 4.07 or otherwise, all in accordance with the terms hereof and thereof; and (ii) in case of any and all extension of time of payment or renewal of any Securities or of any such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the Obligations of extension or renewal, subject to any applicable grace period, whether at maturity, on an interest payment date, by acceleration, required repurchase or otherwise. All payments under this Guaranty shall be made in United States Dollars.
(b) All payments made by the Borrower Company under the Guaranty with respect to the Guaranteed Creditors. If any Securities will be made in United States Dollars free and clear of and without withholding or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor deduction for repayment or recovery of any amount or amounts received in payment or on account of any present or future Taxes imposed or levied by or on behalf of Thailand (or any political subdivision or taxing authority of Thailand), unless the Company is required to withhold or deduct such Taxes by law or by the interpretation or administration thereof. In the event that payments under the Guaranty are subject to withholding or deduction for or on account of any present or future Taxes imposed by Thailand (or any political subdivision or taxing authority of or in Thailand), the Company shall pay Additional Amounts in such amounts and to the extent set forth in Section 4.20(a).
(c) The Company hereby agrees that its obligations hereunder shall be unconditional and irrevocable, irrespective of the Obligations validity, regularity or enforceability of the Securities or this Indenture or the obligations of the Issuers hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(d) The Company hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, any right to pursue or exhaust its legal or equitable remedies against the Issuers (including any right which the Company may have to require the seizure and sale of the assets of the Issuers to satisfy the outstanding principal of, interest on or any other amounts payable under each Note prior to recourse against the Company or its assets), protest, notice and all demands whatsoever and covenants that the Guaranty will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture. If any Securityholder or the Trustee is required by any court or otherwise to return to the Issuers, the Company, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuers or the Company any amount paid by the Issuers or the Company to the Trustee or such Securityholder, the Guaranty to the extent theretofore discharged, shall be reinstated in full force and effect.
(e) The Company agrees that, as between the Company, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Section 6.02, such obligations (whether or not then due and payable) shall forthwith become due and payable by the Company for the purposes of the Guaranty.
(f) The Company also agrees, to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guaranty.
(g) The Company hereby waives, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by law to a guarantor and in particular any applicable provisions of the Thailand Civil Code and:
(i) waives any right of set-off which the Company may have against the registered Holder of a Security in respect of any amounts which are or may become payable by the registered Holder of a Security to the Issuers;
(ii) agrees that the Company is still under an obligation to make payment to the registered Holder of a Security or the Trustee under this Guaranty upon demand by the registered Holder of a Security even though the registered Holder of a Security has not made any demand upon the Issuers, the Trustee or the Collateral Agent or taken any steps or proceedings against the Issuers to seize and sell its assets or property to recover the secured indebtedness or, if such steps or proceedings are taken, the registered Holder of a Security is otherwise unable to satisfy the Indebtedness under this Indenture from such assets or property;
(iii) relinquishes any right or privilege which it may have to demand from any court that the registered Holder of a Security or the Trustee should split or apportion the Indebtedness under this Indenture either proportionately or otherwise against the Company and any other person who has given any Guaranty or other security to the registered Holder of a Security in respect of the Indebtedness under this Indenture;
(iv) agrees that (subject to the other provisions of this Guaranty) the Company shall not be entitled to claim from the Issuers any compensation or release in respect of the obligations and liabilities of the Company under this Guaranty in circumstances where the Company has not made any actual payment under this Guaranty;
(v) agrees that the Company shall not make use of any of the aforesaid payees repays all exceptions or part defenses against the registered Holder of said amount a Security or the Trustee which are or may be available to the Issuers and which concerns the Indebtedness under this Indenture;
(vi) agrees that the Company shall still be bound by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including and liable under this Guaranty even though due to the Borrower), then and in such event, each fault of the Parentregistered Holder of a Security or the Trustee, Arlington the Company can no longer be subrogated to the rights, security interests and GMSC other privileges of the registered Holder of a Security against the Issuers;
(vii) agrees that the Company shall not have the right to demand the Issuers to repay the Indebtedness under this Indenture to the registered Holder of a Security, or to release the Company from its liability under this Guaranty in circumstances where the registered Holder of a Security has granted any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty time or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable indulgence to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeIssuers.
Appears in 1 contract
Sources: Indenture (NSM Steel Co LTD)
Guaranty. In order to induce the Administrative AgentGuarantor hereby unconditionally, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally absolutely and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed CreditorsLender, or order, on demand, together with in lawful money of the United States of America, in immediately available funds and to defend, indemnify and hold harmless Lender and each of its respective directors, officers, employees, successors and assigns from and against any and all reasonable documented out-claims, suits, liabilities (including, without limitation, strict liabilities and any impairment of Lender’s security for the Loan), actions, or proceedings, any obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, court costs, and legal or other expenses (including, without limitation, attorneys’ fees and expenses and amounts paid in settlement of whatever kind or nature), which Lender may incur as a direct or indirect consequence of-pocket expenses which may be incurred : (a) fraud or willful misrepresentation by the Administrative Agent and the Borrower, Guarantor, KBS Strategic Opportunity REIT II, Inc. (“KBS REIT”), or any other Guaranteed Creditors in collecting any Affiliate of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment Borrower, Guarantor or recovery KBS REIT (collectively, “Borrower or its Affiliate”); (b) intentional physical waste of any amount real property constituting collateral for the Loan (the “Property”) by Borrower or amounts received in payment its Affiliate; (c) intentional misapplication or on account of any of the Obligations and any of the aforesaid payees repays all misappropriation by Borrower or part of said amount by reason its Affiliate of (i) proceeds paid under any judgmentinsurance policy by reason of damage, decree loss or order destruction affecting any portion of any court or administrative body having jurisdiction over such payee or any of its property the Property, or (ii) any settlement proceeds or compromise awards resulting from condemnation of all or any part of the Property or any deed given in lieu thereof; (d) intentional misapplication or misappropriation by Borrower or its Affiliate of rents received after receipt by Borrower of any such claim effected by such payee with any such claimant (including notice of default, foreclosure or the Borrower), then and in such event, each exercise of the Parent, Arlington and GMSC agrees that power of sale under the Mortgage or any such judgment, decree, order, settlement other remedies by Lender upon a default by Borrower; (e) intentional misappropriation or compromise shall be binding upon misapplication by Borrower or its Affiliate of any funds disbursed to Borrower from any account which is collateral for the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability Loan; (f) a breach of the Borrowercovenants set forth in Sections 11.1 or 11.2 of the Loan Agreement; or (g) the obligation of "Owner" under the Management Agreement to refund unamortized key money, and the Parent, Arlington whether or GMSC, as the case may be, shall both be and remain liable not Lender has agreed to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if assume such amount had never originally been received by any such payeeobligation.
Appears in 1 contract
Sources: Limited Guaranty (KBS Strategic Opportunity REIT II, Inc.)
Guaranty. (a) In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct and indirect benefits to be received by the Parent, Arlington and GMSC Guarantors from the continuation and conversion proceeds of the Revolving Credit Loans, Swingline Loans, the Incremental Term Loans and the issuance of the Letters of Credit and the entering into of such Interest Rate Protection the Secured Hedge Agreements and Other Hedging the Secured Cash Management Agreements, and by virtue of the financial accommodations to be made to the Borrowers, each of the ParentGuarantors, Arlington jointly and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parentseverally, Arlington and GMSC hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as surety, a surety the full and prompt payment when due, whether upon maturity, acceleration acceleration, or otherwise, of any and all of the Obligations of the Borrower to the Guaranteed CreditorsGuarantied Obligations. If any or all of the Guarantied Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunderpayable, each of the Parent, Arlington and GMSCGuarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Administrative Agent, for the Administrative Agent and/or benefit of the other Guaranteed CreditorsLenders, or order, on demandthe Hedge Banks and the Cash Management Banks, together with any and all reasonable and documented out-of-pocket expenses which (including expenses described in Section 11.04) that may be incurred by the Administrative Agent and the or any other Guaranteed Creditors Lender or any Hedge Bank or any Cash Management Bank in demanding, enforcing, or collecting any of the ObligationsGuarantied Obligations (including the enforcement of any collateral for such Guarantied Obligations or any collateral for the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Administrative Agent or any Guaranteed Creditor other Lender or any Hedge Bank or any Cash Management Bank for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations Guarantied Obligations, and any of the aforesaid payees Administrative Agent or any other Lender or any Hedge Bank or any Cash Management Bank repays all or part of said amount by reason of (i) any judgment, decree decree, or order of any court or administrative body having jurisdiction over such payee or any of its property property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowerany Borrower or any Guarantor), then and in each such event, each of the Parent, Arlington and GMSC Guarantors agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beGuarantors, notwithstanding any revocation (or purported revocation) of this Holdings Guaranty or other instrument evidencing any liability of the Borrowerany Guarantor, and the Parent, Arlington or GMSC, as the case may be, Guarantors shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Administrative Agent, for the benefit of the Lenders, the Hedge Banks and the Cash Management Banks, whether or not due or payable by any Credit Party upon the occurrence of any of the events specified in Section 8.01(h) or 8.01(i), and irrevocably and unconditionally promises to pay such indebtedness to Administrative Agent, for the benefit of the Lenders, the Hedge Banks and the Cash Management Banks, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute and unconditional, and is independent of any security for, or other guaranty of, the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Guarantor, (iii) any payment made to SECOND AMENDED AND RESTATED CREDIT AGREEMENT – Page 125 Administrative Agent or any other Lender or any Hedge Bank or any Cash Management Bank on account of the Obligations which Administrative Agent or such other Lender or such Hedge Bank or such Cash Management Bank repays to any Guarantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (iv) any action or inaction by Administrative Agent or any other Lender or any Hedge Bank or any Cash Management Bank, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing or renewing the Guarantied Obligations, changing the interest rate, payment terms or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Administrative Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Administrative Agent of such written notice (including any subsequent continuation, extension or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Lender or any Hedge Bank or any Cash Management Bank in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Administrative Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Administrative Agent (for the benefit of the Lenders, the Hedge Banks and the Cash Management Banks) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or any other Person and a separate action or actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or any other Person and whether or not any other Guarantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Guarantor or other circumstance which operates to toll any statute of limitations as to any Guarantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Administrative Agent and the other Lenders, the Hedge Banks and the Cash Management Banks without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Guarantor;
(iv) release or substitute any one or more endorsers, guarantors, any Guarantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Guarantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Guarantor to Administrative Agent or any other Lender or any Hedge Bank or any Cash Management Bank regardless of what liability or liabilities of such Guarantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, any Secured Hedge Agreement, Secured Cash Management Agreement or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, any Secured Hedge Agreement, any Secured Cash Management Agreement or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Administrative Agent or any other Lender or any Hedge Bank or any Cash Management Bank to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guarantied hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan 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 any Lender or any Hedge Bank or any Cash Management Bank with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives, to the fullest extent permitted by applicable law, any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Administrative Agent or any other Lender or any Hedge Bank or any Cash Management Bank (other than payment of the Guarantied Obligations);
(v) 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 Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Lender or any Hedge Bank or any Cash Management Bank including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against any other Guarantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Guarantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other guarantor or surety.
Appears in 1 contract
Sources: Credit Agreement (Copart Inc)
Guaranty. (a) In order to induce the Administrative Agentconsideration of good and valuable consideration, the Collateral Agent receipt and the Lenders to enter into this Agreement and to extend credit hereundersufficiency of which is hereby acknowledged, and induce the other Guaranteed Creditors subject to enter into Interest Rate Protection Agreements Article III and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreementssubsection (d) below, each of the ParentGuarantors hereby irrevocably and unconditionally guarantees (the "Guaranty") to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each irrespective of the Parent, Arlington validity and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as suretyenforceability of this Indenture, the full and prompt payment when due, whether upon maturity, acceleration Securities or otherwise, of any and all the obligations of the Obligations of Company under this Indenture or the Borrower Securities, that: (w) the Contingent Payments, to the Guaranteed Creditors. If any or all of the Obligations of the Borrower to the Guaranteed Creditors becomes extent due and payable hereunder, on the Securities will be paid in full when due, by acceleration, Required Regulatory Redemption, or otherwise; (x) all other obligations of the Company to the Holders or the Trustee under this Indenture or the Securities will be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Securities; and (y) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration, Required Regulatory Redemption, or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Guarantor shall be obligated to pay the same before failure so to pay becomes an Event of Default.
(b) Each Guarantor hereby agrees that its obligations with regard to this Guaranty shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any judgment against the Company, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or right to require the prior disposition of the assets of the Company to meet its obligations, protest, notice and all demands whatsoever and covenants that this Guaranty will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any Custodian, Trustee, or similar official acting in relation to the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, this Guaranty, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the obligations guaranteed hereby may be declared due and payable as provided in Section 7.2 for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company of the obligations guaranteed hereby, and (ii) in the event of any declaration as provided in Section 7.2, those obligations will forthwith become due and payable by each of the ParentGuarantors for the purpose of this Guaranty.
(d) It is the intention of each Guarantor and the Company that the obligations of each Guarantor hereunder shall be, Arlington and GMSCbut not in excess of, unconditionally and irrevocablythe maximum amount permitted by applicable law. Accordingly, promises if the obligations in respect of the Guaranty would be annulled, avoided or subordinated to the creditors of the Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that such Guaranty was made without fair consideration and, immediately after giving effect thereto, or at the time that any demand is made thereupon, such Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of such indebtedness Guarantor under such Guaranty shall be reduced by such an amount, if any, that would result in the avoidance of such annulment, avoidance or subordination; PROVIDED, HOWEVER, that any reduction pursuant to this paragraph shall be made in the smallest amount as is necessary to reach such result. For purposes of this paragraph, "fair consideration," "insolvency," "unable to pay its debts as they mature," "unreasonably small capital" and the effective times of reductions, if any, required by this paragraph shall be determined in accordance with applicable law.
(e) Each Guarantor shall be subrogated to all rights of the Holders against the Company under the Securities, this Indenture or the Collateral Documents in respect of any amounts paid by such Guarantor pursuant to the Administrative Agent and/or provisions of such Guaranty or this Indenture; PROVIDED, HOWEVER, that the other Guaranteed CreditorsGuarantor shall not be entitled to enforce or to receive any payments arising out of, or orderbased upon, such right of subrogation until the Contingent Payments, to the extent due and payable hereunder, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors Securities issued hereunder shall have been paid in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeefull.
Appears in 1 contract
Sources: Indenture (Jazz Casino Co LLC)
Guaranty. In order Location: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ As an inducement to induce Promus Hotels, Inc. ("LICENSOR") to execute the Administrative Agentabove License Agreement, the Collateral Agent undersigned, jointly and severally, hereby unconditionally warrant to Licensor and its successors and assigns that all of Licensee's representations in the License Agreement and the Lenders application submitted by Licensee to enter into obtain the License Agreement are true and guarantee that all of Licensee's obligations under the above License Agreement, including any amendments thereto whenever made (the "Agreement"), will be punctually paid and performed. Upon default by Licensee or notice from Licensor, the undersigned will immediately make each payment required of Licensee under the Agreement. Without affecting the obligations of the undersigned under this Guaranty, Licensor may without notice to the undersigned extend, modify or release any indebtedness or obligation of Licensee, or settle, adjust or compromise any claims against Licensee. The undersigned waive notice of amendment of the Agreement and to extend credit hereundernotice of demand for payment or performance by Licensee. Upon the death of an individual guarantor, the estate of such guarantor will be bound by this Guaranty but only for defaults and obligations hereunder existing at the time of death, and induce the obligations of the other Guaranteed Creditors to enter into Interest Rate Protection Agreements guarantors will continue in full force and Other Hedging Agreements effect. The Guaranty constitutes a guaranty of payment and in recognition not of the direct benefits to be received by the Parentcollection, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parentguarantors specifically waives any obligation of Licensor to proceed against Licensee on any money or property held by Licensee or by any other person or entity as collateral security, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each by way of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration set off or otherwise, of any and all of the Obligations of the Borrower . The undersigned further agree that this Guaranty shall continue to the Guaranteed Creditors. If any be effective or all of the Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, reinstated as the case may be, notwithstanding if at any revocation of this Holdings Guaranty time payment or other instrument evidencing any liability of the Borrowerguaranteed obligations is rescinded or must otherwise be restored or returned by Licensor upon the insolvency, bankruptcy or reorganization of Licensee or any of the undersigned, all as though such payment has not been made. This Guaranty shall be governed and construed under and in accordance with the Parent, Arlington or GMSC, as laws of the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payeeState of Tennessee.
Appears in 1 contract
Sources: License Agreement (Apple Suites Inc)
Guaranty. In order to induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Borrower from the continuation and conversion proceeds of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging AgreementsLoans, each of the Parent, Arlington Holdings and GMSC Intermediate Holdco hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington Holdings and GMSC Intermediate Holdco hereby and unconditionally and irrevocably guarantees to the Guaranteed Creditors, as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington Holdings and GMSCIntermediate Holdco, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington Holdings and GMSC Intermediate Holdco agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington Holdings or GMSCIntermediate Holdco, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington Holdings or GMSCIntermediate Holdco, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Guaranty. In order to induce the Administrative Agent, the -------- Collateral Agent Agent, the Issuing Lender and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC Holdings from the continuation and conversion proceeds of the Loans Loans, the issuance of the Letters of Credit and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC Holdings hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington Holdings hereby and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCHoldings, unconditionally and irrevocably, promises to pay such indebtedness Guaranteed Obligations to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Guaranteed Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event, each of the Parent, Arlington and GMSC event Holdings agrees that any such the judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may beHoldings, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, Holdings shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Sources: Credit Agreement (Nm Licensing LLC)
Guaranty. In order to (a) To induce the Administrative Agent, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of make the Loans and the entering into L/C Issuers to issue Letters of such Interest Rate Protection Agreements and Other Hedging AgreementsCredit to the US Borrower, each of the ParentUS Borrower Guarantor hereby absolutely, Arlington and GMSC hereby agrees with the Guaranteed Creditors as follows: Each of the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees guarantees, as primary obligor and not merely as surety, the full and prompt punctual payment when due, whether upon maturityat stated maturity or earlier, acceleration by reason of acceleration, mandatory prepayment or otherwiseotherwise in accordance herewith or any other Loan Document, of any and all of the Obligations of the US Borrower, whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the US Borrower, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under any Debtor Relief Laws, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.
(b) Each US Borrower Guarantor further agrees that, if (i) any payment made by US Borrower or any other person and applied to the Guaranteed Creditors. If any or all of the Obligations of the US Borrower is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (ii) the proceeds of Collateral are required to be returned by any Guarantied Party to the Guaranteed Creditors becomes due US Borrower, its estate, trustee, receiver or any other party, including any US Borrower Guarantor, under any bankruptcy law, equitable cause or any other Law, then, to the extent of such payment or repayment, any such US Borrower Guarantor’s liability hereunder (and payable hereunderany Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other Collateral securing such US Borrower Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral), to the extent permitted by Law, shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such US Borrower Guarantor in respect of the amount of such payment (or any Lien or other Collateral securing such obligation).
(c) To induce the Lenders to make the Multicurrency Revolving Loans to the Luxembourg Borrower, each of the Parent, Arlington and GMSCLuxembourg Borrower Guarantor hereby absolutely, unconditionally and irrevocablyirrevocably guarantees, promises to pay such indebtedness to as primary obligor and not merely as surety, the Administrative Agent and/or the other Guaranteed Creditorsfull and punctual payment when due, whether at stated maturity or orderearlier, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Loan Document, of all the Obligations of the Luxembourg Borrower, whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the GUARANTY JARDEN CORPORATION Luxembourg Borrower, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under any Debtor Relief Laws, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.
(d) Each Luxembourg Borrower Guarantor further agrees that, if (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee payment made by Luxembourg Borrower or any other person and applied to the Obligations of its property the Luxembourg Borrower is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (ii) the proceeds of Collateral are required to be returned by any settlement Guarantied Party to the Luxembourg Borrower, its estate, trustee, receiver or compromise any other party, including any Luxembourg Borrower Guarantor, under any bankruptcy law, equitable cause or any other Law, then, to the extent of such payment or repayment, any such Luxembourg Borrower Guarantor’s liability hereunder (and any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other Collateral securing such Luxembourg Borrower Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral), to the extent permitted by Law, shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such claim effected by such payee with any such claimant (including the Borrower), then and Luxembourg Borrower Guarantor in such event, each respect of the Parent, Arlington and GMSC agrees that amount of such payment (or any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty Lien or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if Collateral securing such amount had never originally been received by any such payeeobligation).
Appears in 1 contract
Sources: Guaranty (Jarden Corp)
Guaranty. In order The SPE Guaranty and the obligations of the SPE under the SPE Guaranty shall be valid and enforceable and shall not be subject to induce any limitation, impairment or discharge for any reason (other than payment in full of all Guaranteed Obligations), including the occurrence of any of the following, whether or not the Administrative AgentAgent or any Purchaser/Lender shall have had notice or knowledge of any of them: (A) any failure to assert or enforce or agreement not to assert or enforce, or the Collateral Agent and stay or enjoining, by order of court, by operation of law the Lenders exercise or enforcement of, any claim or demand or any right, power or remedy with respect to enter into this Agreement and the Sold Assets or the Guaranteed Obligations or any agreement relating thereto, or with respect to extend credit hereunder, and induce any guaranty of or other security for the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition payment of the direct benefits Sold Assets or the Guaranteed Obligations, (B) any waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to Events of Default) of any Transaction Document or any agreement or instrument executed pursuant thereto, or of any guaranty or other security for the Sold Assets or the Guaranteed Obligations, (C) to the fullest extent permitted by applicable Law, any of the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (D) the application of payments received by from any source to the Parent, Arlington and GMSC from the continuation and conversion payment of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC hereby agrees with Debt other than the Guaranteed Creditors as follows: Each of Obligations, even though the Parent, Arlington and GMSC hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the full and prompt Administrative Agent might have elected to apply such payment when due, whether upon maturity, acceleration or otherwise, of to any and all of the Obligations of the Borrower to the Guaranteed Creditors. If any part or all of the Obligations Guaranteed Obligations, (E) any failure to perfect or continue perfection of a security interest in any of the Borrower to the Guaranteed Creditors becomes due Supporting Assets, and payable hereunder(F) any defenses, each of the Parent, Arlington and GMSC, unconditionally and irrevocably, promises to pay such indebtedness to set-offs or counterclaims which any Purchaser/Lender Party or any Obligor may allege or assert against the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all reasonable documented out-of-pocket expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors Purchaser/Lender in collecting any respect of the Sold Assets or the Guaranteed Obligations. If a claim is ever made upon any , including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury (other than payment in full of all Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the BorrowerObligations), then and in such event, each of the Parent, Arlington and GMSC agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent, Arlington or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability of the Borrower, and the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
Appears in 1 contract
Sources: Receivables Purchase and Financing Agreement (Ati Inc)
Guaranty. In order to induce the Administrative Agent(a) Each of Parent and Buyer (each, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and induce the other Guaranteed Creditors to enter into Interest Rate Protection Agreements and Other Hedging Agreements and in recognition of the direct benefits to be received by the Parent, Arlington and GMSC from the continuation and conversion of the Loans and the entering into of such Interest Rate Protection Agreements and Other Hedging Agreements, each of the Parent, Arlington and GMSC a "Guarantor") hereby agrees with the Guaranteed Creditors as follows: Each of the Parentthat it is jointly and severally liable for, Arlington and GMSC hereby unconditionally and irrevocably guarantees and, as primary obligor and not merely as surety, absolutely, unconditionally and irrevocably guarantees to the Lender, the full and prompt payment payment, when and as the same shall become due, whether upon at stated maturity, upon acceleration or otherwise, of any and at all times thereafter, of the Obligations of obligations hereunder (collectively the Borrower to "Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed CreditorsObligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors becomes due and payable hereunder, each of the Parent, Arlington and GMSCGuarantor, unconditionally and irrevocably, promises to pay such indebtedness Guaranteed Obligations to the Administrative Agent and/or the other Guaranteed Creditors, or orderLender, on demand, together with . Each Guarantor unconditionally and irrevocably guarantees the payment of any and all reasonable documented out-of-pocket expenses which may be incurred of the Guaranteed Obligations whether or not due or payable by the Administrative Agent and Borrower upon the other Guaranteed Creditors in collecting any of the Obligations. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account occurrence of any of the Events of Default and thereafter irrevocably and unconditionally promises to pay such Guaranteed Obligations to the Lender. The guaranty under this Section 9 is (i) a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon and (ii) a guaranty of payment and not of collection. Each Guarantor waives any right to require the Lender to sue the Borrower, any other Guarantor, or any other Person obligated for all or any part of the aforesaid payees repays Guaranteed Obligations, or otherwise to enforce its rights in respect of any Collateral securing all or any part of said amount the Guaranteed Obligations. The Lender may enforce this guaranty at any time when an Event of Default has occurred and is continuing.
(b) The obligations of each Guarantor under this Section 9 are, to the fullest extent permitted by reason of applicable Law, unconditional, irrevocable and absolute and not subject to any reduction, limitation, impairment or termination for any reason, including: (i) any judgmentclaim of waiver, decree release, extension, renewal, settlement, surrender, alteration or order compromise of any court of the Guaranteed Obligations, by operation of law or administrative body having jurisdiction over such payee or any of its property or otherwise; (ii) any settlement change in the corporate existence, structure or compromise ownership of the Borrower or any other Company Party; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other Company Party, or their assets or any resulting release or discharge of any obligation of any Company Party; (iv) the existence of any claim, setoff or other rights which either Guarantor may have at any time against any other Company Party, the Lender or any other Person, whether in connection herewith or in any unrelated transactions; (v) any direction as to application of payments by the Borrower, or by any other party; (vi) any other continuing or other guaranty, undertaking or maximum liability of a Guarantor or of any other Person as to the Guaranteed Obligations; (vii) any payment on or in reduction of any such other guaranty or undertaking; (viii) any dissolution, termination or increase, decrease or change in personnel by the Borrower; or (ix) any payment made to Lender on the Guaranteed Obligations which Lender repays to a Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations under this Section 9 by reason of any such proceeding. The obligations of the Guarantors under this Section 9 are not subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Obligations or otherwise, or any applicable Law purporting to prohibit payment by any Company Party, of the Guaranteed Obligations or any part thereof.
(c) Further, the obligations of any Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the Lender to assert any claim effected or demand or to enforce any remedy with respect to all or any part of the Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating to the Guaranteed Obligations; (iii) any release, non-perfection or invalidity of any indirect or direct security for the obligations of a Borrower for all or any part of the Guaranteed Obligations or any obligations of any other Guarantor of or other Person liable for any of the Guaranteed Obligations; (iv) any action or failure to act by the Lender with respect to any Collateral securing any part of the Guaranteed Obligations; or (v) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Guaranteed Obligations, or any other circumstance, act, omission or delay that might in any manner or to any extent vary the risk of such payee Guarantor or that would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
(d) To the fullest extent permitted by applicable Law, each Guarantor hereby waives any defense based on or arising out of any defense of the Borrower or any other Guarantor or arising out of the disability of the Borrower or any other Guarantor or any other party or the unenforceability of all or any part of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Guarantor. Without limiting the generality of the foregoing, each Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by applicable Law, any notice not provided for herein, including notices of nonperformance, notices of protest, and notices of the existence, creation or incurring of new or additional Guaranteed Obligations, as well as any requirement that at any time any action be taken by any Person against any Company Party, or any other Person, including any right (except as may be required by applicable Law and to the extent the relevant requirement cannot be waived) to require the Lender to (i) proceed against the Borrower, any other Guarantor or any other party, (ii) proceed against or exhaust any security held from the Borrower, any other Guarantor or any other party or (iii) pursue any other remedy in the Lender's power whatsoever. The Lender may, at its election and in accordance with the terms of herein, foreclose on any Collateral held by it by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent permitted by applicable Law), accept an assignment of any such Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any Collateral securing all or a part of the Guaranteed Obligations, and the Lender may, at its election, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with any Company Party or exercise any other right or remedy available to it against any Company Party, or any security, without affecting or impairing in any way the liability of such claimant (including Guarantor under this Section 9. To the Borrower), then and in such eventfullest extent permitted by applicable Law, each Guarantor waives any defense arising out of any such election even though such election may operate, pursuant to applicable Law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Company Party or any security.
(e) If at any time any payment of any portion of the ParentGuaranteed Obligations is rescinded or must otherwise be restored or returned upon the insolvency, Arlington and GMSC agrees bankruptcy or reorganization of the Borrower or otherwise, each Guarantor's obligations under this Section 9 with respect to that any such judgment, decree, order, settlement or compromise payment shall be binding reinstated at such time as though the payment had not been made. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the Parentinsolvency, Arlington bankruptcy or GMSC, as the case may be, notwithstanding any revocation of this Holdings Guaranty or other instrument evidencing any liability reorganization of the Borrower, and all such amounts otherwise subject to acceleration under the Parent, Arlington or GMSC, as the case may be, shall both be and remain liable terms of any agreement relating to the aforesaid payees hereunder for Guaranteed Obligations shall nonetheless be payable by the amount so repaid or recovered to other Guarantors forthwith on demand by the same extent as if such amount had never originally been received by any such payeeLender.
Appears in 1 contract
Sources: Stock Purchase Agreement (Salona Global Medical Device Corp)